Death of a Member: Lord Richardson of Duntisbourne
	 — 
	Announcement

Baroness Hayman: My Lords, I regret that I have to inform the House of the death of Lord Richardson of Duntisbourne on 22 January. On behalf of the House, I extend our condolences to the noble Lord's family and friends.

EU: External Action Service
	 — 
	Question

Lord Howell of Guildford: To ask Her Majesty's Government what progress has been made in setting up the European Union External Action Service.

Lord Brett: My Lords, the detailed organisation and functioning of the European External Action Service will be decided by the member states by unanimity on the basis of a recommendation from the high representative, the noble Baroness, Lady Cathy Ashton. The noble Baroness has set up a high level group, the Ashton group, comprising senior members of the Commission and the Council Secretariat and member states' ambassadors to work through the key issues to be addressed.

Lord Howell of Guildford: I thank the Minister for that reply. Did he hear Javier Solana's view that this is going to be "the biggest diplomatic service in the world"? Has he noticed that, since the Lisbon treaty came into force, 54 new super-delegations, previously EU embassies or delegations, have been set up around the world? To whom will this enormous force be accountable, what will it cost and how much of the impact will fall on the already squeezed Foreign Office budget?

Lord Brett: My Lords, we are looking not at the creation of a major new entity but at the reorganisation of the current external representation of the European Union into a much more coherent and effective body. We therefore do not see, as perhaps others do, a massive increase in representation or numbers.
	It is not yet possible to give a detailed breakdown of costs. Any costs would have to be held within the overall EU budget for financial perspectives, which is €49.8 billion, but we are committed, in the form of Cathy Ashton's high level committee, to producing results by April this year, which is not far away. I regret to say that I do not have them at the moment.

Lord Dykes: Although the Minister is not directly responsible, does he agree that it is sad that UKIP and the Tory Party continue with their deep hostility to the EAS proposal? Is it not important for the Government to insist and reassure the House that the Foreign Office's and EAS's representational activities in future will remain totally and self-evidently separate? Will he say a word about the possible indications of UK recruitment applications for the EAS?

Lord Brett: I should not make any comment on the first point for fear of stealing the thunder of the noble Lord, Lord Pearson of Rannoch, who I am sure will be seeking to speak in a moment. It is clear, however, that, as has been said, there will not be an overlap between European external representation, which is about representation on those issues for which Europe has a clear, defined and unanimous policy, and the representation of Her Majesty's Government, which protects the interests of the United Kingdom. Undoubtedly staff will transfer to EAS and we hope there will be representational staff from a number of member states, not least the United Kingdom. We have excellent candidates and we will put them forward. We hope to have secondees in place to ensure that our voice is heard among others so that policy goes forward in a successful manner.

Lord Hannay of Chiswick: My Lords-

Lord Judd: My Lords-

Lord Davies of Oldham: We have plenty of time. Can we hear first from the Cross Benches and then from my noble friend.

Lord Hannay of Chiswick: My Lords, what steps are the Government taking to ensure that senior appointments in the External Action Service are made on the basis of professional competence, including knowledge of languages and experience in the matters most required for the post in question, and not by Buggins's turn or by a rigid national quota system?

Lord Brett: My Lords, the noble Lord makes an important point. It is very important indeed that appointments should be made through a transparent procedure and be based on merit, not nationality. The high representative will oversee the setting up of recruitment processes for EAS. We expect this to be unique. We will not want this to be on a traditional concours system. We do not want to see a long lead time or a long list; nor do we want to have mandatory requirements for candidates to have X number of languages. We need the right skills and experience for the job. For example, the Chinese may need to have an EU head of delegation who has a strong knowledge of the region and even speaks Mandarin if he wants to have the maximum impact. That is what we will seek to have in the appointments that we will be part of making and no doubt Cathy Ashton will seek to ensure that we have such representation.

Lord Judd: With so many of the global issues facing the international community only possible of solution by international co-operation, does my noble friend agree that there has never been a time when this service has been more needed and that the quality of the people within it will be crucial? It is absolutely essential that we begin to speak in harmony and establish common objectives on global warming, economic issues, security and the rest.

Lord Brett: My Lords, I could not agree more with my noble friend. We are delighted to have Cathy Ashton giving that leadership and to have a body of people that will represent the European Union coherently on all those issues where there is unanimity. There will be a greater degree of transparency and accountability to the member states, which will strengthen Europe and the United Kingdom.

Lord Pearson of Rannoch: Can the noble Lord give us a clear assurance that there will be any British embassies left in 10 years' time? If he can give that assurance, will he tell us where they will be? If he does not have the answer at his fingertips, would he be good enough to put a letter in the Library?

Lord Brett: My Lords, I used to listen to with great interest, and enjoy, the questions of the noble Lord and the expertise and perseverance he showed on Europe. However, since he became leader of UKIP, his questions have got more esoteric and strange; I can think of no stranger one than this.

Lord Wallace of Saltaire: My Lords, I understand that the United Kingdom is not represented directly in about 40 or 50 members of the United Nations. Can the noble Lord indicate how many of those countries the External Action Service may have resident representation in?

Lord Brett: The European Union has some 130 external delegations at present. There are some 200 countries and territories, as I recall, in the diplomatic world. Clearly, I cannot answer the question because it is part of the process that is being gone through by high representative Cathy Ashton and her colleagues. However, I am sure that we can expect a sensible solution.

Baroness Park of Monmouth: Can the Minister assure us that the creation of these missions will not lead the Treasury to have the brilliant idea of closing down our missions in those countries? However excellent the EU may be, it is not reasonable to expect a mixed EU representation to look after our national commercial interests and our national defence interests or indeed to handle the issue of passports and entry into this country. We shall need our own missions. I want to be assured that we shall not lose them in a splendid cost-cutting exercise by the Treasury.

Lord Brett: My colleague, the Minister in another place, has given the assurance that there is no connection between the role that we have as a national Government, that of our embassies which represent us abroad and the new structure in the European Union. I am confident that that is the case. Judgments were made solely in relation to the merits of the case and the arguments for having embassies abroad.

Energy: Performance Certificates
	 — 
	Question

Lord Redesdale: To ask Her Majesty's Government when they will transfer responsibility for energy performance certificates from Communities and Local Government to the Department of Energy and Climate Change.

Lord McKenzie of Luton: My Lords, the Government have no plans to transfer responsibility for energy performance certificates from Communities and Local Government to the Department of Energy and Climate Change.

Lord Redesdale: My Lords, is this not a case of non-joined-up government? Now that the Department of Energy and Climate Change is a year old, should not one of the major tools for finding out about emissions from the building sector be transferred to it? Is the Minister confident that DCLG is doing a good job with EPCs, given how few buildings that should have them by law have them?

Lord McKenzie of Luton: My Lords, I believe that the responsibility is with the appropriate department. Although DECC has overall policy responsibility in respect of climate change, CLG has broad responsibility for the built environment, including the planning system, building regulations and housing, so the responsibility is appropriately sited. We realise that there are challenges on quality and performance and those are being addressed.

Lord Bates: My Lords, when energy performance certificates were introduced in Northern Ireland, they were not attached to the costly and bureaucratic home information packs. Will the Minister explain why the same policy approach was not taken in England and Wales?

Lord McKenzie of Luton: My Lords, home information packs are bedding down well and have proved to be a useful instrument to help purchasers. I think that the right decision was made.

Lord Tope: My Lords, how many buildings in the commercial and domestic sectors do not have EPCs?

Lord McKenzie of Luton: My Lords, EPCs are needed for buildings that are constructed, sold or rented out. There are something like 4 million domestic EPCs and 141,000 non-domestic EPCs on the register. I cannot specifically answer the question how many there should be, but there are high levels of compliance, certainly in the domestic sector.

Baroness Gardner of Parkes: Will the Minister comment further on his remark that the home information packs are bedding down well? Has he not read in the press comments by estate agents saying that the packs have not been any help whatever, which I believe is the general public view?

Lord McKenzie of Luton: My Lords, more than 2 million HIPs have been prepared, providing important information up front to help to inform buyers' decisions. As a result, more than 2 million home owners now have an energy assessment and recommendations in their EPC that can help them to cut up to £300 off their fuel bills. Despite a difficult housing market, HIPs are helping to reduce transaction times. An estate agency survey, which looked at 37,000 transactions, showed that, on average, sales with HIPs go through seven days quicker.

Earl Attlee: My Lords, is the Minister confident that the air conditioning and heating systems in government buildings are properly managed?

Lord McKenzie of Luton: My Lords, I could not guarantee that every single government building is managed as it ought to be. Obviously, a good deal of attention is paid to this. It is important to seek to ensure that costs are contained, particularly in relation to energy. Certainly, so far as EPCs are concerned, I believe that there is a high level of compliance in public buildings.

Lord Brooke of Sutton Mandeville: My Lords, the Minister is confident that these certificates are now sited in the right department, but is that confidence shared by the Department of Energy and Climate Change, particularly given how the energy directive gave rise to the certificates in the first place?

Lord McKenzie of Luton: My Lords, we are a joined-up Government and the view that I have expressed is the Government's view.

Baroness Byford: My Lords, on the home information pack figures that the Minister gave us, how many people have had to go back and get new information packs because there is a very short timescale for their viability?

Lord McKenzie of Luton: My Lords, I do not have that information to hand, but I can say that we intend to evaluate the effectiveness of HIPs by updating the 2007 HIP Baseline Research report. The new report should be available later this year.

Lord Redesdale: Can the Minister guarantee that all government buildings, which by law should have an EPC, have an EPC?

Lord McKenzie of Luton: My Lords, I asked that question in preparation for this exchange and I have not got an absolute assurance. One would expect there to be full compliance on the part of government.

Earl Attlee: If the noble Lord cannot answer the question asked by the noble Lord, Lord Redesdale, how can he answer mine?

Lord McKenzie of Luton: My Lords, I confess that I have forgotten the noble Earl's question.

Earl Attlee: My Lords, I asked whether the heating and ventilation systems of government buildings were properly maintained. The noble Lord was able to answer my question, but he could not answer the question asked by the noble Lord, Lord Redesdale.

Lord McKenzie of Luton: With respect, the noble Lord was looking for some sort of absolute assurance that every single building was treated as it should be. I would answer that I hope that that is the case, particularly in relation to ventilation systems, as they are important energy emitters and they need to be properly maintained and surveyed. However, I do not think that anybody could sensibly give an absolute guarantee in those terms.

Immigration: "Bogus" Colleges
	 — 
	Question

Lord Naseby: To ask Her Majesty's Government what action they have taken in the last six months to prevent illegal immigration through the use of "bogus" colleges and to close down student loan scams used to obtain visas.

Lord West of Spithead: There are currently around 2,000 sponsors on the tier 4 register. In the past six months we have carried out around 600 inspections, suspending 140 and revoking 15 tier 4 licences. United Kingdom Border Agency staff are trained to spot forged loan documents. Applicants who use them are refused and may be banned from entering the United Kingdom for up to 10 years. On 12 November 2009, the Prime Minister announced a review of tier 4 that will report back shortly.

Lord Naseby: The Minister will know that I asked the question last July. Why is it still so easy for these bogus colleges to operate and to bring in illegal immigrant students? Why is it that at this time we have a large number of sham applications from Pakistani students? It would appear that the assessment of their entry requirements is done outside Pakistan by one of our embassies. Is that not a situation where that embassy has no idea of the tricks of the trade in that part of the world? Would it not be far better if the whole assessment was done by our own people in Pakistan?

Lord West of Spithead: My Lords, the noble Lord asks a large number of questions. First, I do not accept that we have not got a handle on these various colleges. There were initially some 15,000 colleges in the DIUS list, of which about 4,000 regularly had foreign students. After going through them and guaranteeing that they are bone fide colleges, we have now reduced that number to about 2,000. We have made careful checks of those colleges-I mentioned the number that we have closed down-so we have a very strong handle on that.
	On the students coming into the country, it is important to keep in balance the fact that foreign students in this country, just in terms of fees, bring in £2.5 billion a year; with all the other added value, it is about £8.5 billion a year. We have to balance that against ensuring that we do not get a lot of people coming here who are not entitled to be in this country. I think we keep that balance fairly well correct and we are very good at doing those checks. I could go into more detail, but I will open it up for more questions.

Lord Pearson of Rannoch: My Lords, is there any truth in the suggestion that, of the 66,000 people who came to this country from Pakistan in the nine months to last September, only 29 were interviewed by British immigration officials and the rest by contracted interviewers in Pakistan or elsewhere?

Lord West of Spithead: My Lords, the system is that we look at documentation before any of the people provide their biometrics. After looking at that documentation, we assess whether we need to have a face-to-face interview. We are content that we are achieving good results. Indeed, I was speaking earlier today to the independent watchkeeper, who was appointed last year; we will see in his report, which comes out later this week, that he is fairly satisfied with the levels that have been achieved.

Baroness Hamwee: My Lords, does the Minister agree that this matter goes wider than just immigration? Is there not a reputational issue for the country-I appreciate that he is a Home Office Minister, but this is joined-up government-in having colleges which purport to provide first-class education but are, in the terms of the Question, "bogus"?

Lord West of Spithead: My Lords, I had hoped that I had answered that question-we now have a clear view of what sort of schools are allowed. Since March 2009, for any school wishing to bring people in we have a team which inspects it and looks at the whole area, including the quality of its courses. We make sure that the school is aware of what it has to do in terms of where those students move to if they leave the college. There is, in effect, a tick-off list of things that colleges have to go through. That is why some have been suspended. Indeed, there have been bogus colleges, but we are taking enforcement action. There is a lot of money in this. One college in east London was closed because it was not meeting the requirements. It was quite clearly bringing in people for immigration purposes. Two of the people had £2.65 million in cash at their home address. It must have been an awfully big suitcase. They have been put inside for about eight years each-25 years in total for the team. So we are enforcing and we are doing things.

Lord Dholakia: My Lords, is it not possible for the Minister to ensure that information about bogus or bona fide colleges is available to students when they make their applications, because in many cases it is perfectly feasible to fall into the trap of applying to colleges that are not genuine?

Lord West of Spithead: My Lords, the noble Lord raises a good point. I would be surprised if something was not available and I will check and get back to the noble Lord in writing. If there is not, I will ensure that the Home Office provides that information.

Lord Mawhinney: My Lords, the Minister has been very positive about government policy; that is what we would expect of him. However, he also said that in the examination of 600 colleges, 140 were closed. Who takes responsibility for the prior existence of those 140 colleges which were not fit for purpose?

Lord West of Spithead: In fact, to be precise, I said that 140 were suspended; 15 have had their licences removed. The UKBA would have to take that responsibility because it carried out the inspections with DIUS, not having made sure that the colleges were appropriate. That is why there is re-checking to ensure that this is done.

Lord Skelmersdale: My Lords, the Minister must know the number of visas issued. Is there any way of correlating this with the number of students who have or have not left this country at the end of their courses?

Lord West of Spithead: My Lords, when we have e-borders we will be able to check people in and out much more accurately. With biometrics we will be able to tally those numbers. At the moment, we are not able exactly to do that. Since tier 4 was launched, we have been dealing with just short of half a million applications. We are dealing with very large numbers of people. When e-borders are introduced, we will have a much better handle on this and be able to know exactly who has come in, who has gone out and where we stand.

Lord Avebury: My Lords, what happens to a person who has legitimately obtained an entry certificate to attend a college which is subsequently declared to be bogus? Can he transfer to a legitimate institution or is he sent back home?

Lord West of Spithead: My Lords, he is allowed to transfer to another institution, but these institutions now have to be properly registered.

Lord Roberts of Llandudno: My Lords, I am not sure whether this is the Minister's responsibility, but, considering the needs in Haiti, is he willing to engage with the Government in providing more opportunities-educational scholarships and so on-to those who have suffered so much in the devastation over the past two weeks?

Lord West of Spithead: My Lords, I am sure that the whole House sends its deepest sympathy. What has happened in Haiti is absolutely appalling. I am wary of making a commitment to do anything-I get into enough trouble as it is-but I will look into it.

Health: Reciprocal Agreements
	 — 
	Question

Lord Smith of Clifton: To ask Her Majesty's Government why they are rescinding the reciprocal health agreements with Guernsey, the Isle of Man and Jersey with effect from 1 April.

Lord Tunnicliffe: My Lords, the Government ended their agreement with the Channel Islands on 31 March 2009 and are ending their agreement with the Isle of Man on 1 April 2010 as they do not represent value for money for the UK taxpayer and travel insurance is widely available. Tourists will continue to receive free accident and emergency treatment. However, they will now be expected to have insurance to cover the cost of further emergency and other treatment.

Lord Smith of Clifton: My Lords, I thank the Minister for that rather unsatisfactory explanation. I have two points. First, why was the arrangement not renegotiated, rather than unilaterally stopped? Secondly, does the Minister agree that this is very ageist? A large number of very old people travel to and from the Crown dependencies, particularly the Isle of Man. I declare an interest here: I am one of them, and I cannot get personal health insurance. If I were to leave and then had to have an air ambulance back, it would cost in excess of £4,000.

Lord Tunnicliffe: My Lords, the agreement had a six-month notice clause on either side; in fact, we provided a one-year notice of the termination. It is not value for money for the UK taxpayer, and it is not the role of the UK taxpayer to provide travel insurance to citizens. We have a series of bilateral agreements, where they make sense, and we have some obligations under the European Union. We do not have a specific obligation to old UK residents wanting to go to the Isle of Man.

Lord Quirk: My Lords, I declare an interest as a Manxman. Can the Minister clarify an anomaly? Neither the Isle of Man nor Switzerland is a member of the EU, but on 7 January the Minister of State, Gillian Merron, told MPs that, unlike visitors from the Isle of Man, those from Switzerland would still be "entitled, free of charge", to all NHS hospital treatment and care. Is this act of charity because so many tourists from Switzerland are destitute bankers?

Lord Tunnicliffe: That is a lovely idea, but in practice it is more complex. An enormous amount of European Union regulations extend to the European Economic Area, which is Switzerland, Norway, Lichtenstein, Iceland and the whole of the EU. The agreements we have with the countries of that area are under EU regulations 1408/71, and the general heading of the co-ordination of social security, which have the effect of looking after workers, pensioners and tourists as described. They are part of our European obligations. We do not have those responsibilities with the Isle of Man because it chose not to be a full member of the EU; it is a Protocol 3 member-a Crown dependency-and it only enjoys a customs union.

The Lord Bishop of Winchester: My Lords, I declare an interest as the bishop with responsibility for the Church of England in the Channel Island Bailiwicks, and also as somebody financially affected, both personally and with regard to my diocese, by the Government's decision which is the target of the noble Lord's Question.
	The Government have mentioned that they have a range of bilateral agreements, and some with places a great deal further away that the Channel Island Bailiwicks. Are they considering making that kind of bilateral agreement with the Bailiwicks of Jersey and Guernsey? It should be remembered that moves such as that which is the target of this Question cause considerable, further damage to any sense the people of those islands-subjects of Her Majesty-have that Her Majesty's Government really understand their needs and position.

Lord Tunnicliffe: My Lords, the relationship with the Channel Islands is a special one. That and the relationship with the other two Crown dependencies depend on their being sovereign territories. As a generality, they do not come under the UK Government, but under the Crown. The bilateral agreements that we have elsewhere are judged to be of value. None that we have outside the EAA involves the movement of funds. These agreements were terminated because we were paying money to these various communities. We were paying £2.8 million this year to the Isle of Man, £3.8 million to Jersey and £0.5 million to Guernsey. We did not feel that that was good value for money.

Lord Cope of Berkeley: My Lords-

Lord Dubs: My Lords-

Lord Davies of Oldham: My Lords, we have not heard from the government Benches since Question 1.

Lord Dubs: My Lords, perhaps my noble friend would comment on the position of British tourists visiting the Channel Islands or the Isle of Man. Is it not a fact that they will now no longer have the sort of health cover that they would have if they visited one of the EU countries? Does this not mean that they have to take out insurance; and, if this were widely known, would this not be damaging to tourism in the Channel Islands and the Isle of Man? Surely the time has come to renegotiate the matter.

Lord Tunnicliffe: My Lords, the position as described is accurate. British tourists will need to take out insurance to go to the Isle of Man. However, we recommend that, wherever British tourists are travelling, they take out insurance. It is not as straightforward getting healthcare across the world as might be described. It is important, as a generality, that British tourists take out healthcare insurance because of the variations in service. In the EU, we have an arrangement.

Lord Cope of Berkeley: My Lords, does the Minister recognise that while it may be fair enough for one of Her Majesty's Governments-the one over there-to renegotiate these agreements with others of Her Majesty's elected Governments in these dependencies, it is not fair for them simply to bully them in the way that they are doing? Will they now negotiate these things properly with the dependencies?

Lord Tunnicliffe: My Lords, there was no bullying. These agreements were not perpetual, but had proper termination clauses. The proper termination period was given. No new information came forward from other parties. We think that the way we have behaved is entirely reasonable.

Lord Elystan-Morgan: My Lords-

Lord Davies of Oldham: I am very sorry, my Lords, but our time is up.

Passengers' Council (Non-Railway Functions) Order 2010

Motor Vehicles (International Circulation) (Amendment) Order 2010

Overhead Lines (Exempt Installations) Order 2010

National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010

Infrastructure Planning (Decisions) Regulations 2010

Communications Act 2003 (Disclosure of Information) Order 2010
	 — 
	Motions to Refer to Grand Committee

Moved By Baroness Royall of Blaisdon
	That the draft orders and regulations be referred to a Grand Committee.
	Motions agreed.

Equality Bill

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	2nd Report from the Delegated Powers Committee

Committee (4th Day)

Clause 83 : Interpretation and exceptions
	Amendment 97ZA had been withdrawn from the Marshalled List.
	Clause 83 agreed.
	Schedule 8 : Work: reasonable adjustments
	Amendments 97A to 97D not moved.
	Schedule 8 agreed.
	Schedule 9 : Work: exceptions
	Amendment 97E
	 Moved by Lord Alli
	97E: Schedule 9, page 165, line 3, leave out paragraph (f)

Lord Alli: I shall also speak to Amendment 119A tabled in my name and those of the noble Baronesses, Lady Campbell of Surbiton, Lady Neuberger, and Lady Noakes.
	Amendment 97E seeks to offer priests the same employment protections in relation to their sexuality as other members of society. As the law stands, an individual cannot be sacked for simply being gay, except, as I explained at Second Reading, one class of people-and that is the clergy. At Second Reading, the right reverend Prelate the Bishop of Chester suggested that the way in which faith communities operated is sexuality-neutral. But the church's stance was based on an intolerance towards sexual relationships outside marriage, whether they were gay or straight. I said then that I thought the right reverend Prelate was mistaken, and I am pleased to clarify the point.
	What the law actually says is that an exemption is made for,
	"a requirement related to sexual orientation".
	Sexual orientation is not the same as having sex inside or outside of marriage. This is not semantics, and it is at the heart of what I am seeking to correct. Simply by being gay, the law allows religious organisations-in this case the employer-to sack a priest, in this case the employee. So even where a gay man takes a vow of celibacy, the law still allows for his dismissal. The law is not about adultery; it is not about sex outside of marriage; it is not even about gay sex. It simply allows for the dismissal of the individual for being gay. I am not sure that is what we intended when we wrote the Bill. It is like saying it is all right to be sacked for simply being black. How can that be right?
	There are very few people who do not know of gay members of the clergy. In fact, I suspect from the letters I have had that the Church of England is full of them. It has to be asked: what is the purpose of this law? Why is it there? Let me tell you what a law like this does while it remains in place. It creates a climate of fear and insecurity. It is a threat. It does what all nasty bits of discriminatory law do-it wields the power to destroy somebody's life, but it holds it in reserve.
	Be in no doubt-this is an unpleasant and spiteful provision, in my view unintended to be so. Ever since I made it clear that I was going to bring forward this amendment, I have had many discussions from people inside and outside the church. Many have quoted Article 9 of the European Convention on Human Rights. But all rights flowing from that convention have a caveat that limits their effect, as long as they do not disturb other people's rights. Article 9-or, indeed, Article 8 which protects gay people from discrimination-does not apply when looking at this provision. A policy of "don't ask, don't tell", if you are gay, but keep it under wraps or risk losing your job, is simply wrong. It will never be right. That is the reality which gay priests, whether they are celibate or not, must face every day. It is a fear that they live with. This is the persecution which I believe we should seek to fix in this Bill at this time.
	I hope Amendment 119A will be less controversial. Its intention is to remove the prohibition against civil partnerships taking place in religious buildings. I shall repeat that: it is to remove the prohibition against civil partnerships taking place in religious organisations. It is a straightforward amendment. It does not seek to force religious institutions to host civil partnerships and I would not intend it to. It simply has to be a matter for them to decide whether or not they wish to do so.
	There can be no doubt, however, that civil partnerships have been a huge success. I suspect that many noble Lords will have been touched in some way by the range of civil partnerships that have happened in the community. Noble Lords put through this House a really significant measure. I want to reiterate my thanks to the many noble Lords who helped that provision find its way on to the statute book.
	In July last year, the Quakers passed a resolution which, in effect, would allow civil partnerships to take place in Quaker meeting houses. I know that other religious groups are seeking to follow suit, such as Liberal Judaism, the Metropolitan Community Churches and the Unitarian Church. It seems rather perverse that the law prevents them from doing so: the law no longer respects religious freedoms; it seems to be dictating religious behaviour, which cannot be right.
	At Second Reading, I was heartened by the speech of the right reverend Prelate the Bishop of Chester, who mentioned that he might be more sympathetic to the amendment. The support of the church on this provision to remove the prohibition would be a simple and generous step to take. I know that the noble Baroness, Lady Noakes, hoped to speak on this amendment, but unfortunately she has been detained. She asked me to make it clear that she would have supported it and that she wanted to speak in this debate.
	I hope that my noble friends on the Front Bench will think very carefully about supporting the amendment and will give it further consideration, as it will benefit the lives of many people of faith. I beg to move.

Baroness Neuberger: I wish to speak to Amendment 119A. As the noble Lord, Lord Alli, has cited, it is four years since civil partnerships became lawful in this country. During that time, 35,000 couples have entered into a civil partnership. That has brought huge happiness, recognition and benefits to couples across the UK. We all know that, at present, civil partnerships, like civil marriages, cannot be conducted in religious premises.
	Unlike heterosexual couples who have a choice, gay couples are disbarred from making any sort of faith commitment within a religious building. As president of Liberal Judaism, which was the first religious organisation, as far as we know, to produce and publish a liturgy for same-sex commitment ceremonies, I believe that those faith groups and individual organisations that wish to allow civil partnerships to take place within their religious premises should not be prohibited from doing so. That would mean a civil partnership taking place within a Quaker meeting house, for example, or in a Unitarian church, or in a Liberal Judaism synagogue, followed by some kind of faith-based commitment ceremony, the second following naturally from the first.
	I want to make it clear that those faith-based organisations which support the amendment do not argue that everyone should allow such ceremonies. This is purely a permissive amendment to allow those who wish to do so the right to do it. I have some personal experience in this area. I have officiated at many same-sex commitment ceremonies which I have found uplifting and moving. Often there is a sense of joy far beyond that experienced with heterosexual marriages, however delightful they are, as only recently have gay couples, who have been together for years, been able to have any kind of public ceremony. We have come a long way but there is a little further to go.
	Recently, I talked to two registrars at civil partnerships where I have been a guest and where I have officiated at a commitment ceremony later on. They said, speaking from their personal viewpoint, that they find the prohibition on the use of religious premises strange. They argue that for many people, at whose ceremonies they have officiated, a religious element would have been desirable had it been possible. In my experience, there has been real joy for gay couples who have had a religious element after a civil partnership ceremony. That has been carried out at a reception in a hall or wherever and not in a synagogue. On two occasions, the couples concerned had specifically told me how they would have been overjoyed and, even more-this is very Jewish-their parents would have been overjoyed, if they could have had a ceremony within a synagogue as well. I believed them: they had tears in their eyes as they raised that with me. The prohibition meant that, in some way, what they had was second best.
	When we in Liberal Judaism published our liturgy for same-sex commitment ceremonies and encouraged couples who had been through a civil partnership ceremony to have a religious commitment ceremony afterwards, we were responding to a deeply felt desire. I support the amendment because I believe that it is a matter of common justice that we recognise the love and commitment of same-sex couples. I can see no reason why there should be a prohibition against such ceremonies taking place on religious premises.
	The Religious Society of Friends, the Unitarian Church and the movement for Liberal Judaism are all in accord on this and I hope that people of other faiths, or other parts of the same faiths, will see that we are seeking to overturn a prohibition and by no means forcing others to do the same as us. I believe that this should be a matter for religious organisations to decide for themselves and that, once they have done so, the law of the land should not stand in their way.

Baroness Butler-Sloss: My Lords, I have received a powerful letter from a Quaker telling me something I had not known before-that the Quakers, at their yearly meeting last year, decided to seek a change in the law so that what the noble Baroness, Lady Neuberger, described could come to pass. This is a permissive amendment and I am utterly persuaded by it. I would be totally opposed to it being a requirement, because many churches would find this utterly abhorrent; but in so far as there are churches and synagogues and other faith places that would like this to happen, it is entirely appropriate and I support the amendment.

Baroness Campbell of Surbiton: My Lords, I support Amendment 119A moved by the noble Lord, Lord Alli. It feels very good to be supporting another part of the Bill. I am not, I hope, just a disability lobby, I feel very passionately about the whole equality agenda, and was persuaded to add my name to this amendment because I see the issue as a matter of religious freedom. I support its permissive approach: it seems good to enable the various religious denominations which now wish to perform and bless civil partnerships to be able to do so. There is no suggestion that this may be mandatory; I have had many conversations with my Christian friends over the past few weeks to talk about the permissiveness of this approach, and they feel that it is a fair approach.
	Some of your Lordships will have received a briefing note from the Quakers and others who feel that they should be able to follow the insights of their members in celebrating long-lived committed relationships between man and man or woman and woman in exactly the same way as they currently recognise the marriage of opposite-sex couples. Our laws sometimes need to adapt to catch up with society. I think that this is clearly the situation here. For me, accepting and valuing human diversity by supporting our fundamental differences will be the glue that binds us in the future. I urge your Lordships to support the amendment.

The Lord Bishop of Winchester: My Lords, the noble Lord, Lord Alli, suffers, as do the churches, from the determination of the Government and others to use the language of orientation when it is perfectly clear-and I am sure that it is perfectly clear to him-that the issue for the churches and for people of some other faiths is of sexual behaviour, not of sexual orientation. However, granted the language that is used, both in European legislation and in our own, we have had no alternative but to go along with this language of sexual orientation when it is actually sexual conduct that is the matter at stake for the churches. I should be very surprised indeed if the noble Lord had any evidence of any clergy being put at any kind of risk at all simply on the grounds of their orientation, in the sense that the churches use the word, as opposed to their conduct in matters sexual.
	It also needs to be clear-the noble Lord himself was very clear-that the churches have a particular understanding of marriage. The right reverend Prelate the Bishop of Chester was right when he said that this is not distinctly aimed at gay people, but at the question of sexual conduct, whether marital, heterosexual or homosexual.
	Rather surprisingly, too, the noble Lord concentrated simply on priests. The churches' interest in these matters-we will come to this when we discuss the next group of amendments-lies in our absolutely rooted conviction that a person of faith seeks to live in every respect according to the teaching, tenets and vision of the faith of which they are part. That is just as much a matter for certain lay people in the employment of the churches as it is for clergy.
	Lastly, there are exemptions in the Bill on a whole range of points, such as the need for disability organisations to be able to employ particular people, for organisations connected with race and ethnicity to employ people of a particular ethnicity at certain points, and for crisis centres and women's refuges to employ particular people of a particular gender. It would be discriminatory if the House and Parliament went down the route suggested by the noble Lord's amendment.
	On Amendment 119A, noble Lords will well remember the Civil Partnership Act, in which civil partnership was postulated in significant ways as being analogous to civil marriage, notwithstanding the fact that nothing in that Act says in any way at all what a civil partnership is or to what those entering into it are committing themselves. Her Majesty's Government in that process made it absolutely clear that they did not regard the civil partnership as a form of marriage.
	The amendment in the name of the noble Lord, Lord Alli, and to which noble Baronesses have spoken so clearly, would blur the distinction between civil and religious marriage as two paths to effect what is in law the same relationship, because registrars by law are not permitted to engage in, or to allow others to engage in, any kind of religious ceremony in a civil marriage. It would also blur the characteristics of the civil partnership as distinct from marriage, whether conducted in a church service or by a registrar.
	Shortly down the line, were this amendment to be passed-I understand that Stonewall has made this intention entirely clear-is the likelihood of a steady and continuing pressure on, if not a forcing of, the churches, the Church of England among them, to compromise on our convictions that marriage has a character that is distinct from that of a civil partnership. Churches of all sorts really should not reduce or fudge, let alone deny, that distinction. That is why we should refuse the noble Lord's amendment, enticing though it is.

Lord Harries of Pentregarth: My Lords, I support Amendment 119A. The Government were absolutely right to respect the religious sensitivities of the Church of England when the Civil Partnership Bill went through Parliament, but since that time a new situation has emerged. The Quakers, liberal Jews and other religious bodies have made it quite clear that they want permission to conduct these ceremonies in a religious context with religious language. This is a fundamental issue of religious freedom not just for the individual but for what Burke called one of the little platoons-the institutions-of our society. Their freedom should be respected in this regard.

Baroness Greengross: My Lords, I was privileged to attend here in Westminster the civil partnership celebration of a very senior British medical doctor and his American partner. It was a very moving and lovely ceremony, but they had another ceremony in New York in their church. They are deeply committed Christians, and that dimension was quite different and terribly important to them. It made them feel that they were on a par with everyone else. I support the amendment.

Baroness Howe of Idlicote: I also support Amendment 119A. It is quite clear from the briefings, which we have had from all sides, that this is a permissive, not a mandatory clause. If the Church of England wishes to continue in the way it always has, then that is entirely a matter for it. I am sure it will be able to stand up to whatever extra pressure is put as time goes on. On the churches that clearly want to be allowed to do this, if the particular organisation, church, priest or whoever is in charge wishes to perform such a ceremony, we should allow what people at other churches want. I support the amendment.

The Lord Bishop of Chichester: I apologise for speaking again from these Benches, but one important distinction is being missed. A lot depends on what you mean by "a church". You might say that the Church of England may carry on in the way that it wants to, but the people responsible for marriages in the Church of England are not an abstraction called the Church of England or even, although I may sometimes wish it were different, the bishops; the people responsible are the incumbents of parish churches. I am sympathetic to this amendment and hope we may find a way that would enable those religious bodies that are quite comfortable with this to proceed in that way. However, I fear that to pass the amendment in its present form would put pressure not on the national institution of the Church of England but on the incumbents of the parishes and lead to widespread disarray throughout the Church of England. I hope there may be some room for manoeuvre over this, but as it stands it would achieve something different from that which is intended.

Lord Lester of Herne Hill: First, we do not support Amendment 97E because it is not necessary. We hope that the noble Lord, Lord Alli, will not find it necessary to divide the House on it. However, we support Amendment 119A for reasons I will briefly give.
	Amendment 97E seeks to remove sexual orientation as an occupational requirement that may be used as a reason not to employ someone for the purposes of employment by a religious organisation. Schedule 9(2) lists the exceptions for occupational requirements where the employment is for the purposes of an organised religion, and those reproduce the existing exceptions in the Sex Discrimination Act and the sexual orientation regulations. Article 9 of the European Convention on Human Rights protects the fundamental right to freedom of thought, conscience and religion, and Article 8 protects the right to respect of private and family life, including a person's sexuality and sexual identity.
	I respectfully put it to the right reverend Prelate the Bishop of Winchester that the distinction he and others seek to draw between it being okay to be gay but not okay to have sex while being gay would not be recognised under the European convention, any more than would be the distinction drawn between sex outside and inside marriage. It represents a deeply held and sincere belief by some devout Christians-which I respect-but it is simply not the case that, for example, people who enter into a civil partnership are okay if they do not have sex together. The whole point of the relationship of being sexual partners is that you have an enduring and loving relationship in which sex is a perfectly normal activity. With respect, that distinction would not pass muster under European convention or European Union law.
	It is important to recognise-I hope here the bishops will cheer up-that in accordance with Article 9 of the convention, religious organisations are entitled to organise themselves in accordance with their beliefs and those of their followers. For example, it is well recognised that a church or ecclesiastical body may as such exercise on behalf of its adherents the rights guaranteed by Article 9 of the convention and that any interference must be proportionate. The Article 9 rights of the churches and their supporters and/or believers potentially conflict with the Article 8 rights of gay and lesbian people.
	In recent years, the right to non-discrimination on the basis of sexual orientation has become enshrined in European law. Convention case law has established that Article 14 includes differences of treatment because of sexual orientation, with no distinction drawn between having sex or being gay. Convention law requires that where sexual orientation is the ground for a difference of treatment, there must be significant and convincing objective justification for the treatment. The Joint Committee on Human Rights, of which I was a member, made that clear in its report on the sexual orientation regulations in 2007.
	The same is true under EU law. I will not detain the House by quoting from the framework directive. Suffice it to say in reassurance to the noble Lord, Lord Alli, that the only exception permitted in striking a fair balance between religious freedom and the right of respect for the private life of gay and lesbian people is one which accords with the strict test of proportionality. Therefore, the amendment which seeks to remove the safeguard for churches is overkill and unnecessary.
	Amendment 119A would to amend the Civil Partnership Act by removing all bans on civil partnerships which take place in religious premises or using religious services. I was the author of the Private Member's Bill which resulted in the Civil Partnership Act, so I am naturally very sympathetic to the amendment. I agree with the powerful speeches that the House has heard from the noble Baronesses, Lady Neuberger, Lady Greengross and Lady Howe of Idlicote, the noble and learned Baroness, Lady Butler-Sloss, and the noble and right reverend Lord, Lord Harries of Pentregarth. Many religious same-sex couples want to have their partnerships blessed by religious organisations. Others feel that civil partnerships are not equal to marriage. Article 12 of the convention guarantees the right to marry, but this applies only to a man and a woman. In the United States, litigation is pending to establish a constitutional right of same-sex couples to marry. I doubt that it will succeed.
	Amendment 199A does not go so far. It would permit but not require a religious aspect to be given to civil partnership ceremonies if the church or other religious body agrees. I believe that this is an issue which needs to be dealt with. As the noble and learned Baroness, Lady Butler-Sloss, said, this is permissive and is not in any way an imposition. Regrettably, I doubt whether we can do that in the Bill, which does not mean that we should not do it. It may be that we can do it in the Bill, but broadening the application of Article 8 of the convention in respect of the private and family life of same-sex couples needs to be done in a way that does not require religions to jump one way, as the right reverend Prelate the Bishop of Winchester would jump, or the other way, as, for example, the Quakers or liberal Jews would jump. As to churches, there is an issue about how religious acceptance in the Bill might work. The public function would be considered as regards the registration in providing a facility or service in a religious setting. There are also some convention issues about civil marriage.
	While we fully support the amendment in its object, we hope that the Minister will express the Government's support for the principle of Amendment 119A and will undertake to consult speedily on whether and how it can be put into law, having of course consulted religious organisations, gay rights organisations and the public at large.

Lord Elystan-Morgan: My Lords, I may be very naive in this matter. I was not present in the House in 2004 when the Civil Partnership Act was passed. I was playing judicial truant at the time and I apologise for that. It seems to me that two simple questions are raised. First, is it proper for a religious organisation that wishes to bless a civil partnership to be proscribed from doing that? Secondly, is it correct that the individual involved in that civil partnership should be denied that blessing if that religious organisation wishes so to pronounce it? It seems to be entirely a question of whether or not there is any good reason at this stage for that limitation. As to why it was brought about in 2004, I know not. It may very well be due to sensibilities relating to religious organisations, but it is entirely permissive. It does not place any obligation upon anybody who does not wish that obligation to be so placed.

Lord Hunt of Wirral: My Lords, I have already declared my interests at the start of Committee stage. There is a further interest I should declare as a churchwarden in the Church of England in the County of Somerset in the benefice of Chewton Mendip and Emborough. In that capacity, I have come across several examples of the situations that we are now debating. The problem here is that there are two separate issues. The noble Lord, Lord Alli, wants to remove any possibility of there being a requirement related to sexual orientation for any form of employment. The second amendment, which is on a separate issue, means that there would be no ban on allowing civil partnerships to take place on religious premises.
	As I understood it from the noble Lord-several noble Lords who have participated in this debate have echoed this-the second amendment is intended to be permissive. In other words, his intention is not to force religious premises to hold civil partnership ceremonies but to allow them to do so with their permission. I recall, as he reminded us, that on Second Reading the right reverend Prelate the Bishop of Chester suggested he would be happy to get into discussions with the noble Lord regarding his suggestion of,
	"some sort of permissive arrangement for the faith communities",
	which, he said,
	"would be worthy of careful discussion". [Official Report, 15/12/09; col. 1449.]
	I have not yet heard what has been the result of those discussions and whether there were any further ideas brought to the table. This topic ought to be thought through with the seriousness that it deserves. As we have just been reminded, there were debates on this issue when the Civil Partnership Bill was in Committee in this House. I remember that we were informed by the noble and learned Baroness, Lady Scotland, that civil partnerships were to,
	"stay absolutely within the secular field and do not trespass on the different and sometimes conflicting religious beliefs of others, who may adhere to a plethora of religions". [Official Report, 12/05/04; col. 140.]
	As I understood the position, therefore, both civil marriage and civil partnerships were to mirror each other and remain entirely secular. That is what we decided. In other words, to carry out a civil partnership ceremony in a religious premises would be a breach of the law. The Government have therefore made their views well known on this subject. We on these Benches would agree with their view. The civil partnership ceremony and the civil marriage ceremony are considered equally and neither can take place on religious premises.
	The debates on the Civil Partnership Act informed us that, while the actual ceremony could not take place on religious premises, a religious centre would then be allowed to act in whatever way it wished as regards the couple. They could, for example, give them a blessing-we have had one example of this-or add some other religious element to the day. Perhaps the Minister could inform the House whether this is still the case. Does the Minister have any figures or estimates as to the number of couples who add a religious element on to the end of their civil partnership? Indeed, has any research taken place to think through the impact of the proposals being made by the noble Lord? I strongly agree with the noble Baroness, Lady Neuberger, that we have come a long way. I greatly welcome the fact that we have done so, but we must pause for a moment and consider how much further we should go in what is a very sensitive area.
	The amendment of the noble Lord, Lord Alli, would prevent sexual orientation ever being a requirement for a position of employment, and I think he recognises that what he says involves controversy. He does not believe that anyone should be sacked from or persecuted in their job or vocation because of their sexuality. However, does he accept that whatever his intentions, which we can understand, this would be an attack on the central doctrines or tenets of various religious organisations, some of them very influential in our lives?
	We have to address more fully the scope of exemptions applied to employment regulations, which we will do in later debates. Perhaps it suffices to say now that we believe it is right to preserve the status quo regarding employment provisions, but when the noble Lord comes to consider what action to take, I would like to ask him whether he considers that religious organisations that believe in gender specification being a requirement for employment, such as the Roman Catholic church which believes that women should not be priests, should be allowed to make such specifications? Also, if he believes that sexual orientation should not be allowed to be part of a specification for employment, what is his reasoning behind allowing gender and certain other characteristics to remain? We would argue that they should remain as they are, but if the noble Lord is interested in changing the law for one characteristic, he has to look at the possibility of changing it for others as well, which is why we on these Benches are not minded to support his amendment.

Baroness Thornton: Amendment 97E in the name of my noble friend Lord Alli would mean that a requirement related to sexual orientation could no longer be applied by an organised religion in relation to employment for the purposes of the religion. For example, the Church of England could no longer require a gay Minister to be celibate, should it so wish. Paragraph 2 of Schedule 9 replaces and harmonises separate exceptions in current discrimination legislation for occupational requirements where the employment is,
	"for the purposes of an organised religion".
	The existing exceptions are contained in Section 19 of the Sex Discrimination Act 1975 and regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003.
	Paragraph 2 and regulation 7(3) both refer to a requirement "related to sexual orientation" rather than to be of a particular sexual orientation. This choice of wording was deliberate so as to accommodate the concerns of some churches about certain forms of sexual behaviour rather than sexuality as such. However, a person is protected from discrimination because of how their sexual orientation is manifested, such as being in a same sex relationship, as well as because of their sexual orientation. If "requirement related to sexual orientation" was removed from the exception, a church would not be able to require a minister of religion to be celibate if they are not married. This is because only a person who is heterosexual could meet the requirement to be married. Therefore, the requirement would constitute discrimination because of sexual orientation, unless it was allowed by the exception.
	In the Government's view, paragraph 2 of Schedule 9 strikes an appropriate balance between competing rights. The rights in question are the rights of followers of organised religions to manifest their religion and the rights of others not to be discriminated against because of sexual orientation. The Government would risk upsetting that balance if we were to prevent churches and other organised religions from manifesting their religion in the limited circumstances allowed by the exception.
	The Joint Committee on Human Rights also considers in its recently published Report on the Bill that,
	"in general, the provisions of Schedule 9(2) ... strike the correct balance between the right to equality and non-discrimination and the rights to freedom of religion or belief and association, especially if interpreted in line with the approach set out in Amicus v Secretary of State for Trade and Industry".
	In that case, the High Court decided that regulation 7(3) of the 2003 regulations does not interfere with any rights under Article 8(1) of the European Convention on Human Rights. In other words, regulation 7(3) does not involve any violation of the private rights of gay, lesbian and bisexual people. It simply limits the scope of what the regulations add to existing rights. That applies equally to paragraph 2 of Schedule 9 because it has the same effect as regulation 7(3) of the 2003 regulations.
	Amendment 119A, also spoken to my noble friend Lord Alli-

Lord Lester of Herne Hill: In the Amicus case the Minister referred to, the learned judge Mr Justice Richards went on to say:
	"It was entirely proper ... for the State to seek to balance the rights of homosexuals against those of followers of organised religions. The strength of feelings on both sides is amply demonstrated by the claims ... in these proceedings. The balance struck is proportionate".
	He also made clear that the exception had to be strictly construed. Can the Minister confirm that?

Baroness Thornton: The noble Lord is, as ever, completely right and I thank him for his remarks.
	Amendment 119A, as the noble Lord, Lord Hunt, pointed out, is a different issue. This amendment seeks to remove the prohibition which prevents civil partnerships from taking place in religious premises and from including religious language. This amendment, however, is not a workable solution to this issue. Amending the Civil Partnership Act in this way could lead to inconsistencies with civil marriage, have an unexplored impact on devolved Administrations, and lead to confusion on what is permitted and what is required. I will therefore be asking my noble friend to withdraw his amendment. However, as with many others who have spoken, I am not unsympathetic to his intentions.
	I will outline why we think there is a problem and what issues would need to be solved for us to proceed with this matter. The Government have been at the forefront of introducing measures to protect the rights of lesbian, gay and bisexual people. The Equality Bill replicates the comprehensive protections from discrimination because of sexual orientation which we put in place in 2003 in the employment area and extended in 2007 to services and public functions. Civil partnerships provide lesbian and gay couples with legal recognition of their relationships, giving them vital protections and benefits. As has already been mentioned, 35,000 couples have formally registered their relationship since the Act came into force at the end of 2005. The noble Lord, Lord Hunt, asked if research has been undertaken on how many people have added a blessing to this. I do not have those figures but the noble Lord's point underlines the point I was making about the things we need to consider as we move forward in this area. Civil partnerships were originally designed to be broadly similar to civil marriage. Let me repeat what my noble and learned friend the Attorney-General said:
	"Just as with civil marriage, these unions will be entirely secular and the restrictions on religious content and religious premises therefore mirror the position for civil marriage".-[Official Report, 12/5/2004; col. 139GC.]
	That is one of the issues that would need to be resolved.
	My noble friend wants lesbian and gay couples to have the opportunity to enter into a civil partnership in a religious setting if they wish to do so and if the religion in question allows it. That is, at present, not permitted. Indeed, it is expressly prohibited in the provisions that my noble friend's amendment seeks to delete. As is the case for civil marriage, which is regulated by the Marriage Act 1949, civil partnerships are entirely secular in nature. As such, they cannot take place in religious premises or contain any religious language. The secular nature of these civil unions clearly separates them from religious unions. It is open to churches and the religious community to arrange blessings for civil unions or not, according to their own tenets.
	My noble friend's amendments would change the present position of parity between civil partnerships and civil marriages. We would find ourselves in the anomalous position of allowing, for example, prayers to be said at a secular venue in the course of forming a civil partnership but not when solemnising a civil marriage. One consequence would be that this would appear to discriminate against heterosexual couples who might want a religious element to be added to the proceedings for their civil union. We have to consider the practicalities of that situation. Would he require a now secular registrar to carry out religious services? Would members of the clergy be able to conduct a ceremony not in their place of worship? These are the kinds of issues that need to be teased out.
	As we have heard, some denominations, such as the Quakers, have been clear about their wish to carry out same-sex religious partnerships. However, different faiths have different views on these issues. Further, the legal position in relation to the solemnization of religious marriages differs between different faiths, and such matters are often closely entwined with doctrine and teachings. For instance, in some faiths it is the building that is approved for the solemnization of marriages, while for others, such as Quakers and Jews, there are greater freedoms about where to marry. Under the Marriage Act 1949, places of worship are currently registered only for the solemnization of marriage, and therefore we could end up with the situation where we have legislated for religious partnerships but there are no buildings where they can take place and no one who can perform such a ceremony. There are also, as ever, different arrangements for Scotland and Northern Ireland. These are not reasons for not looking seriously at the issue that my noble friend has raised, but I hope that they illustrate the complexities of moving forward.
	We fully accept the fundamental importance of this issue to many same-sex couples, and we recognise the strength of feeling that some people have about the need for change. We also recognise, though, that any change would bring into play some fundamental issues and would risk undermining the parity that has been carefully established between civil partnership and civil marriage. Any change can therefore be brought only after proper and careful consideration of these issues, which is why it is important that we listen, discuss and consider views on this important issue, particularly the views of those churches and organisations that want to conduct same-sex unions on a voluntary basis so that same-sex couples can have the opportunity to formalise their relationships in a religious setting.
	We want this dialogue to move forward and we want all those with an interest in this issue to have their say. We believe that this careful consideration will pay off in how we proceed together to the next stage of resolving this issue. I hope that my noble friend accepts the reasons behind the need to resist this amendment, and that he will support the Government's commitment to look at this issue further. I call upon him to withdraw his amendment.

Lord Alli: My Lords, I agree with the right reverend Prelate the Bishop of Winchester-the first and the last time I shall say that in this debate-that the language on sexual orientation may be incorrect: we may be talking about sexual conduct, not sexual orientation. That is what I would like to see as correct in the Bill.
	The right reverend Prelate asked whether there were any examples of this form of discrimination in the church. I shall give him two: Dr Jeffrey John, required to step down as Bishop of Reading in 2003 in spite of being celibate, and John Reaney, refused a job as a youth worker by the Bishop of Hereford in 2005 in spite of an agreement that he would be celibate. So there are examples, and we need to think about them carefully.

The Lord Bishop of Winchester: There was no such agreement with Mr Reaney to which the noble Lord refers.

Lord Alli: We will differ on that matter. The issue in Amendment 97E is about the wording regarding sexual orientation, and I would like the Government to look at that and see if they can do something about it.
	The noble Lord, Lord Hunt of Wirral, asked a question about women priests. The noble Lord and I should maybe avoid that entire debate at this stage of Committee as I fear it could go on for some time, but I would say to him that to my knowledge there are no women priests, in any church, trying to conceal their gender for fear of discrimination. There is a significant difference between sexuality and gender.
	I thank all those who have spoken on Amendment 119A. The majority of speakers, with the exception of the Benches Spiritual, reflected the mood of most people outside this House, where there would not be an objection to this. This is a permissive amendment. It does not seek to force the churches into taking any kind of action. It simply seeks to remove the prohibition. Most people would probably judge that to be a fair thing.

Lord Tebbit: My Lords, the noble Lord is making an extremely interesting argument. Is it not broadly true that we have all decided that civil marriages should not take place in churches? Is that discrimination? If so, it seems a fairly sensible discrimination.

Lord Alli: My Lords, that is a point that confuses me; perhaps others can enlighten me. A civil marriage with a religious component is surely a marriage. If you want to marry with a religious ceremony, you are allowed to do so. It is called a marriage. If you wish to have a civil partnership and you want to share that celebration with people of your own faith and, more important, they want to share it with you, and their church permits it, this amendment would allow it to happen. There is a difference, but heterosexual couples have a solution because they can get married in church. That should satisfy both those needs.
	This is not meant to be an attack on the central tenets of religion. The Quakers, liberal Judaism and the Unitarian churches want these provisions to allow them to start their debate.
	I was a little disappointed by the responses of the Front Benches on all sides of the Committee. Maybe it is the way the usual channels work; maybe it is because this Bill has a pace; maybe we do not want to enter into these discussions at this stage in Parliament. Normally in the winding-up it is for the proposer to say, "I will read the Minister's comments carefully and reflect on them". I ask for the opposite. Will the Front Benches read carefully what the Committee is saying to them and think carefully about what they have heard, which has been a reasoned debate, with reasoned arguments from all round the Committee? Will the noble Baroness and the noble Lords on both Front Benches please think again? I hope that they will support this amendment. In the interim-

Lord Lester of Herne Hill: My Lords, the noble Lord has expressed disappointment with all the Front Benches, but will he accept from me-having, as it were, started the whole business of civil partnerships-that we fully support the object of his second amendment? We are concerned not with boring technicalities but with dealing with the difficult problems that the Minister has indicated so that we can achieve the results that he, and we, would like.

Lord Alli: I will certainly accept that, and with good grace. On the basis of that, I beg leave to withdraw the amendment.
	Amendment 97E withdrawn.
	Amendment 98
	 Moved by Baroness O'Cathain
	98: Schedule 9, page 165, line 5, leave out "application is a proportionate means of complying" and insert "requirement is applied so as to comply"

Baroness O'Cathain: My Lords, it is a privilege to open a debate of such importance and interest to so many people. I am grateful for the support that I have received from many noble Lords for what we seek to achieve. In particular, I thank the noble Lord, Lord Anderson, the right reverend Prelate the Bishop of Winchester and the noble and learned Baroness, Lady Butler-Sloss, for co-sponsoring my amendments. Unfortunately, due to the timing of this debate, the noble Lord, Lord Anderson, has had to go to Strasbourg to fulfil his commitments to the Council of Europe. However, he supports the amendments.
	I intend to test the opinion of the Committee on these amendments. Organisations that are based on deeply held beliefs must be free to choose their staff on the basis of whether they share those beliefs. It would, for example, be appalling if the Labour Party could be sued for not selecting Conservative candidates and no one would want to see Greenpeace sued for refusing to appoint oil executives to its board of directors.
	A belief in freedom of association demands that, even if we do not share the beliefs of an organisation, we must stand up for its liberty to choose its own leaders and representatives. That, in essence, is what this debate is all about. I accept that the Government intend to protect the freedom of churches to choose their own staff, but their wording does not mirror that intention. The exemption in paragraph 2 to Schedule 9 to the Bill allows churches to discriminate on the grounds of sex, sexual orientation and marital status when making appointments to key religious posts. An exemption along these lines has existed for more than 30 years. Some think that this is special pleading for the churches, but the principle of exemptions is widely accepted, not just for religion.
	Paragraph 1 of this schedule is a general employment exemption that applies when being of a particular race, sex or other protected characteristic is a crucial requirement for a particular job. This makes perfect sense. My next point has already been mentioned today, but how would a rape crisis centre operate if it was forced to employ male counsellors? Beyond the employment sphere, Schedules 3 and 6 contain broad exemptions for insurance, political posts and for Parliament itself. Clause 193 even contains an exemption for sport, so the churches are not alone in needing limited exemptions from discrimination law in order to allow them to function normally.
	It has been said that paragraph 2 is intended to be nothing more than a restatement of existing exemptions for religion. However, the Government have tinkered with the wording. Whereas the key phrase,
	"employment is for the purposes of an organised religion",
	was previously undefined, the Government decided to insert a new definition, contained in paragraph 2(8). In addition, whereas previous legislation did not include the qualifying word "proportionate", that word now appears twice in paragraph 2. If the Government's intention was to maintain the status quo, as they have said continuously since April 2009, why not use the same wording? After all, it has been in use without difficulty since 1975, when it was incorporated in the Sex Discrimination Act. By tinkering, they have caused enormous concern among religious groups. It is essential that the wording is returned to what it was. All the religious groups and their lawyers say that the result of my amendments would be the retention of the status quo. That is what we want-nothing more and nothing less.
	Many noble Lords will have received briefing in support of Amendments 98, 99 and 100 from the Church of England and the Roman Catholic Church. Support, however, goes much wider than that. A letter pleading specifically for all three of these amendments was sent to the Government in November last year, signed by numerous religious groups, including the Hindu Council UK, Sikhs in England, the Jain Network, the Muslim Council of Great Britain, the Fellowship of Independent Evangelical Churches and many other Christian groups. These are the very groups that the Government intend should be protected by paragraph 2. These are the ones whose religious liberty is now at stake. If we get this wrong, these are the ones who will have to pay the legal bills to defend themselves in court.
	The religious groups, particularly the Church of England and the Roman Catholic Church, have made representations to the Government on this issue since the Bill was published in April last year. Until two weeks ago, the Government denied that paragraph 2 caused any problems and refused to budge. Now, at the 11th hour, they have admitted that there is a problem and have tabled Amendment 99A. It is a slight improvement, but they still have not got it right. For a church post to be exempt, paragraph (b) in Amendment 99A requires proof that the post exists to promote or explain the religion. The Church of England briefing that we all received last week says that paragraph (b) leaves,
	"an unacceptable amount of legal uncertainty".
	The briefing states:
	"Although Ministers may say that 'exists to' does not mean 'exists only to', our legal advice is that that does not reflect the natural meaning of the words and that [subsection] (b) as drafted would require promoting or representing the religion, or explaining its doctrine, to be the defining characteristic of the job. That is highly problematic because many roles in the Church of England that involve promoting or representing the religion could not simply be described as 'existing' for such a purpose. Many posts require their holders to carry out multiple functions, some of which would involve promoting or representing the Church, while other functions of the same post would not".
	The briefing concludes that the government Amendment will leave the churches worse off than under existing law.
	This is very serious. We cannot accept the government Amendment. We have been forced into the position of having a vote at Committee because of government Amendment 99A. The doctrine of pre-emption means that I could not bring my own amendments back at Report if Amendment 99A went through today. We must vote to decide the issue now. I wish the Committee to consider all three of my amendments as a group. They are a package. They seek to maintain the status quo by taking out the changes inserted by the Government. Amendments 98 and 99 would remove the new proportionality tests. Amendment 100 would remove the new definition of organised religion. Amendments 99 and 100 are therefore consequential on Amendment 98. The Minister may take a different view on what is consequential. I am sure that she will explain her view when she speaks. For my part, I invite the Committee to regard Amendments 98, 99 and 100 as a package and to vote accordingly.
	The other package on offer today is the Government's Amendment 99A. Due to the fact that it offers an alternative definition of organised religion from the one already in the Bill, it also requires Amendment 100 to go through. It seems a little complicated, but a single Division will decide the matter: if the Committee supports Amendment 98, it is rejecting Amendment 99A; if the Committee rejects Amendment 98, then the Government get their way and Amendment 99A goes into the Bill.
	My package of amendments represents the legal status quo, which is supported by the Church of England, the Roman Catholic Church and others. The Government's package represents a change in the wording of religious exemptions that is not supported by the churches. I beg to move.

Baroness Royall of Blaisdon: My Lords, with permission I will speak to government Amendment 99A, but I will of course respond to all amendments at the end of the debate. Amendment 99A revises the definition of employment,
	"for the purposes of an organised religion",
	in paragraph 2(8). This provision has already been the subject of much debate in both this House and another place. Our amendment seeks to address concerns that have been expressed to us by the churches and others about the terms of paragraph 2(8). I have not tabled this Amendment because I believed that there was a problem with the original drafting. However, having listened carefully to the debate in this House and to representations from many members of the churches, we recognised that there were concerns about the need for further clarification. That is precisely what this amendment seeks to do-to clarify, not to change.
	The definition in paragraph 2(8) was not tinkering; it was introduced because responses to the consultation on the Government's proposals for the Bill highlighted some confusion about when the existing exceptions can lawfully be used. We also received examples of cases where one of the existing exceptions-Regulation 7(3) of the 2003 regulations-appeared to have been misused, such as in relation to the finance director of a church.
	The Government's intention is not and never has been to narrow the scope of the existing exceptions, as the Solicitor-General made clear on a number of occasions in another place. Paragraph 2(8) is designed simply to reflect how my noble friend Lord Sainsbury of Turville described the scope of Regulation 7(3) when replying to the debate on the 2003 regulations in this House on 17 June 2003. He said:
	"When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion".-[Official Report, 17/6/03; col. 779.]
	Clearly, many people, including some noble Lords, remain unpersuaded that paragraph 2(8) reflects this description. They maintain that it narrows the scope of the existing exceptions. In particular, they are concerned that it does not cover people employed by churches in representational roles and could even rule out most priests because of the amount of time that they may spend on activities that do not directly involve ritualistic or liturgical practices, for example. That point was well made by the most reverend Primate at Second Reading.
	Ministers have listened to those concerns and Amendment 99A seeks to address them. The wording of paragraph 2 of Schedule 9 reflects very closely that used by my noble friend Lord Sainsbury to describe the very narrow range of employment covered by Regulation 7(3) of the 2003 regulations. I should explain that,
	"for the purposes of an organised religion",
	is a significantly narrower expression than,
	"for the purposes of a religious organisation".
	A religious organisation could be any organisation with,
	"an ethos based on religion or belief".
	That is the expression used in paragraph 3 of Schedule 9, which allows, for example, a care home run by a religious foundation to require employees to be of a particular religion or belief in certain circumstances. However, employment,
	"for the purposes of an organised religion",
	means a post, such as a minister of religion, involving work for a church, synagogue, mosque or temple. Ministers of religion are clearly in employment,
	"for the purposes of an organised religion".
	To remove any shadow of a doubt, the revised definition that we are proposing refers to them explicitly. The words "wholly or mainly", which it was claimed necessarily implied some kind of arithmetic or quantitative test, have been removed.
	The small number of posts outside the clergy to which paragraph 2 applies are those that exist to promote or represent an organised religion or to explain the doctrines of the religion. I should like to clarify that this does not mean that the post must involve only one or more of those activities, but one or more of them must be intrinsic to the post. By "representing" the religion, we mean acting or speaking for, and with the authority of, those in leadership within the religion. We therefore intend senior employees with representational roles, such as the secretary-general of the General Synod and the Archbishops' Council of the Church of England, to be within the definition. A further example is that of a senior lay post at the Catholic Bishops' Conference charged with acting on behalf of bishops when contributing to public policy developments. These are both roles where the emphasis is more representational than promotional. There will be similar such roles in other organised religions. An example of a post that exists more to promote the religion is that of a missionary working for a church in this country. A church youth worker who primarily organises sporting activities would be unlikely to be covered by the exception. However, a youth worker whose key function is to teach Bible classes probably would be covered, because explaining the doctrines of the religion would be intrinsic to the role.
	Because the exception applies only to a very narrow range of posts, all roles will need to be closely examined to determine whether or not they fall within the scope of the exception. An organised religion that applies in relation to a role a requirement related to sexual orientation, for example, must be prepared to justify this on a case-by-case basis. Whether or not a particular role exists to promote or represent the religion or explain its doctrines will depend on the purposes of the role and the nature of the work that it involves.
	It is certainly not our intention that the exception should apply to employees such as administrative staff, accountants, caretakers or cleaners. Whether or not an applicant for the job of church bookkeeper is, for instance, married to a divorcee should not be a reason not to employ the person. In addition, the exception would not apply to most staff working in press or communications offices, although senior and high-profile roles within such offices that exist to represent or promote the religion would probably be within its scope. The revised definition that we propose also covers a case where a post to which the exception applies has just been created and the first person to hold it has yet to be appointed.
	Amendment 99A would provide more clarity and greater legal certainty about the scope of the exception-for organised religions themselves, for the people whom they employ and, in the event of legal proceedings, for the courts. I commend it to the Committee.
	I will add some information about the reasoned opinion. Last November, the European Commission delivered a reasoned opinion to the Government on two aspects of our implementation of the European directive underlying the 2003 sexual orientation regulations. We had previously satisfied the Commission's concerns over a number of other aspects of our implementation of the directive. The reasoned opinion was apparently disclosed by the Commission, without the Government's prior knowledge, and Mark Harper in another place referred to it during the Bill's Report stage. We have asked the Commission to explain this apparent unauthorised disclosure. I take this opportunity to make it clear that we have not, as asserted by Mark Harper and others, informed the European Commission that the Bill will amend Regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, so as to bring this into line with the directive. That was incorrectly stated in the reasoned opinion.
	Issuing a reasoned opinion is one of the formal steps in infraction proceedings, which the Commission can bring where it considers that a member state has incorrectly transposed a directive. The generally agreed position is that reasoned opinions are confidential between the Commission and the relevant authorities in the member state concerned. If the Commission is not satisfied with the member state's response, the case could be referred to the European Court of Justice. That is why I cannot say any more about the reasoned opinion in question, to which we will be responding in due course. However, I thought that it was important to set out the Government's views on that issue.

The Archbishop of York: My Lords, I want to explain why I shall be supporting Amendments 98, 99 and 100, moved by the noble Baroness, Lady O'Cathain, in preference to Her Majesty's Government's Amendment 99A.
	This debate has the potential to be one where the competing arguments pass each other like ships in the night. We do not want it to be like the radio exchange recorded between an American naval ship and Canadian authorities off the coast of Newfoundland in 1995. The Americans said, "Please divert your course 15 degrees to the south, to avoid collision." The Canadians replied, "Recommend you divert your course 15 degrees to the north, to avoid collision." The American captain said, "This is the captain of a US Navy ship. I say again divert your course." The Canadians replied, "Negative. You will have to divert your course." Americans: "This is the aircraft carrier USS Missouri. We are a large warship of the US Navy with heavy weaponry and nuclear warheads. Divert your course now!" Canadians: "We are a lighthouse. Your call." It is true.
	It is important, as we make up our mind on the choices before us, that we are clear what they are. Are the disagreements ones of principle or are they about how best to reflect agreed principles in how the Bill is drafted? Arguing about drafting may be less exciting than arguing about principles, but we are a legislative Chamber. When important issues concerning individual rights and religious freedom are at stake, we have a duty to ensure not only that the principles are right, but that the drafting is clear.
	There are those who struggle with the concept of allowing any exemptions for religious organisations from provisions relating to discrimination in the field of employment. But the argument is simple. Religious organisations, like all others, must be able to impose genuine occupational requirements in relation to those whom they serve. There are many jobs that you can do for the Church of England without necessarily being an Anglican or indeed a Christian. But for our clergy, and for some key lay roles, we impose certain requirements in relation to faith and conduct. The same is true of all other churches and religious organisations, although the nature of the requirements will vary in each case.
	Even within religious organisations, certain requirements about marital status or personal conduct may be different between roles. An obvious example is that the Roman Catholic Church insists that priests and bishops are male and unmarried. The Orthodox Church has the same requirements, except that it will ordain as priests, although not bishops, those already married. The Church of England allows women to be priests but not bishops. We allow both to be married. We also impose restrictions on marriage after divorce, cohabitation and same-sex relationships. These touch on matters-gender, marital status and sexual orientation-that the law lays down that employers in general should not take into account. To use the language of the Bill, they represent "protected characteristics" that can form the basis of discrimination claims.
	By contrast, churches and other religious organisations cannot draw the same clear-cut distinction between who we are and what we do; between what we believe and how we conduct ourselves; between work life and private life. Successive legislation over the past 35 years has always recognised the principle that religious organisations need the freedom to impose requirements in relation to belief and conduct that go beyond what a secular employer should be able to require. Noble Lords may believe that Roman Catholics should allow priests to be married; they may think that the Church of England should hurry up and allow women to become bishops; they may feel that many churches and other religious organisations are wrong on matters of sexual ethics. But if religious freedom means anything, it must mean that those are matters for the churches and other religious organisations to determine in accordance with their own convictions. They are not matters for the law to impose. Start down that road and you will put law and conscience into inevitable collision, and that way lies ruin. As Edmund Burke said:
	"Bad laws are the worst sort of tyranny".
	I am not determining a point of law, but seeking to restore tranquillity and a spirit of moderation, magnanimity and meeting the other half way. Aristotle, in his Nicomachean Ethics, says that magnanimity is that which is just and sometimes that which is better than justice: it corrects the law when that is deficient because of its generality.
	In all that they have said, Her Majesty's Government have sought to provide assurances that they do not want to go down the road of putting the law and conscience into inevitable collision. I welcome that. However, if that is the case, the onus is on Her Majesty's Government to demonstrate why any narrowing of the provisions in existing legislation under the Sex Discrimination Act 1975 and the 2003 sexual orientation regulations needs to be made. There is no doubt that paragraph 2 of Schedule 9 to the Bill would constitute a significant narrowing of the present law, for the reasons that I set out at Second Reading. When I heard the Leader of the House describing what may be exempt, I said to myself, "My gosh, here comes a barrage of endless tribunals". The Government's Amendment 99A goes some way, but not far enough, to meeting the objections.
	When your Lordships' House debated the 2003 regulations, the Minister of State at the time, the noble Lord, Lord Sainsbury of Turville-whom the noble Baroness has already quoted-said that,
	"we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion. The words on the page reflect our intentions".-[Official Report, 17/6/03; col. 779.]
	The wording of Amendment 99A is either a departure from those intentions or fails to satisfy them. We have gone from posts outside the clergy, including those who exist to promote and represent, to posts that exist only to promote or represent.
	Again, the question is about preserving the status quo and about not introducing legal uncertainty. The 2003 regulations did not impose a proportionality requirement. That was a deliberate policy decision on the part of Her Majesty's Government. Now, on the eve of this debate, it is suddenly being suggested that the words in the Bill are needed to avoid legal challenges from the European Commission. This is a very puzzling claim when Ministers have insisted all along that the Bill does not narrow the exemption provided in the 2003 regulations. It is hard to see-

Lord Lester of Herne Hill: I am very sorry to interrupt the most reverend Primate, but what he has just said is not the case. The opposite is what the Minister has said, that this was not done in any way to comply with the EU Commission's opinion. This was magnanimity shown to the church.

The Archbishop of York: I am still puzzled, given that in 2004 the Government successfully defended the compatibility of the regulations in European law against a challenge from Amicus in the High Court. The judgment was given on 26 April 2004, paragraphs 88 to 128.
	Noble Lords are entitled to some explanation as to why the unpublished opinion of officials reached in private in Brussels is to be preferred-that is my view-to the Government's own previous view that was sustained by a High Court judge after all the arguments had been tested in open court and a judgment produced running to some 58 pages. In the High Court, Her Majesty's Government had argued that it would not be right for courts or tribunals to make judgments about questions of doctrine. Her Majesty's Government were right to take the view in 2003, and there is no good reason for them to take a different view now that they have the High Court judgment on their side.
	So why are Her Majesty's Government now dissatisfied with their own very recent handiwork? Where are the examples of actual abuses that have caused difficulties? Where are the court rulings that have shown that the law, as it is, is defective? As they say, "If it ain't broke, why fix it"? The truth is that there are none because the status quo has been working perfectly satisfactorily. The earlier balances were struck by Parliament very carefully. The right course is to leave them exactly as they are. That is what Amendments 98, 99 and 100 will achieve.
	Her Majesty's Government's Amendment 99A would introduce fresh legal uncertainty with unnecessary arguments over whether "exists...to" means that promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary components. Noble Lords know where I am going; principles matter and drafting also matters. For this reason, I support the amendments of the noble Baroness, Lady O'Cathain.

Baroness Butler-Sloss: I have added my name to Amendments 98, 99 and 100. In the same way as the noble Baroness, Lady Campbell of Surbiton, I support religious freedom, which is why I supported Amendment 119A and I now support these amendments.
	In the exemptions provided by the Employment Equality (Sexual Orientation) Regulations 2003, regulation 7(3), which is highly relevant to today, did not include the express requirement of proportionality, although regulation 7(2) did require it. Those exemptions, including the absence of proportionality, were challenged in the High Court in the Amicus case which has just been referred to by the most reverend Primate. Not to have the requirement for proportionality was upheld by the High Court judge.
	The introduction of the word "proportionate" in the two regulations inevitably changes the legal position. The word "proportionate" must mean something, and something more than the previous position because it was not there before-despite what seems to be the erroneous view of the Government, that this is exactly the same. Once you put a new word in it must be different. If this paragraph is challenged in the courts as a matter of interpretation or construction, a judge would look at the words in regulation 7(3) of the 2003 regulations and at the introduction of the word "proportionate" and be bound to find that there was a change.
	The effect would be to cause major problems for churches. There might be a situation where a church met the organised-religion test but could still lose a legal challenge in a particular case if a litigant argued that their action was disproportionate in his or her situation. That is not just my opinion-although I was once a judge, I do not see myself as an expert-but I have been provided with very important advice by James Dingemans, Queen's Counsel, which supports exactly what I have just said. He has also raised an interesting point about the status of celibacy of priests of the Roman Catholic Church and whether under the new paragraphs of Schedule 9 the church might be challenged as not being a proportionate means of complying with the requirements of that church to have celibate priests. It is a very interesting idea. I do not know whether anyone from the Roman Catholic Church feels like expressing a view on that but it is raised again by James Dingemans, Queen's Counsel. This is a controversy stretching over nearly 1,000 years so these are not uncharted waters, but it would be odd if it came up under the word "proportionate" in the Equality Bill.
	The noble Baroness, Lady Royall, quoted the noble Lord, Lord Sainsbury of Turville, who was speaking to the 2003 regulations. Perhaps I may add to her quotation of the noble Lord because he said in relation to the exemption in Regulation 3 admitting the test of proportionality:
	"we do not believe that these regulations should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts".-[Official Report, 17/6/03; col. 778.]
	The proposed rewording in this Bill is likely to have just the effect the noble Lord wished to avoid in 2003.
	I turn to government Amendment 99A. It continues to restrict the rights of religious groups to employ those who will be in sympathy with them and their strongly held religious convictions. However, through the Minister, the Government say that Amendment 99A clarifies the position. In my view, it does exactly the opposite for this reason: one has to ask what does the word "exists" mean? Is it intended to require the person selected to fill a post which solely exists to promote or represent the religion or partly exists for that purpose? The Minister says that it partly exists. I am not certain that that is the way the present wording will be seen if the matter gets to court.
	I shall give an example. The Minister spoke of a youth worker and so shall I. A youth worker may be employed to teach Sunday school but he may also be employed to drive the parish bus for the youth group. If the parish employs him to drive and driving is as important in one sense as teaching on a Sunday-he teaches one day a week but drives for three or four days a week-is he in an employment that exists for the purpose of promoting and so on, according to the words of Amendment 99A? I think there is a real doubt and, therefore, a real possibility that the use of the word "exists" might precipitate court proceedings, which would be an expensive and regrettable position and which quite clearly the Government do not intend. In my view, it imports uncertainty and may very well inhibit flexibility in the use of the employee by those who are afraid that by employing someone with more than one job they may be open to court proceedings.
	I also had a very touching letter from an organisation called Ellel Ministries, which reads:
	"We are writing from Ellel Ministries International to ask if you'd kindly consider the implications of the Equality Bill to a Christian ministry such as ours. We have four centres, we help people in their time of need, we provide free Christian counselling, in the form of healing retreats, to the suicidal, the depressed, the traumatised, the abused and to the broken. If this Equality Bill became law, we'd be unable freely to employ people who are best qualified to bring the appropriate level of help to those in need".
	It does not sound as though this is primarily Christian teaching. This is primarily helping, in a Christian organisation, those who are suicidal, depressed or traumatised, and I suspect that they are right, that they would not be able to have someone of their particular religious persuasion.
	This is probably a commendable effort by the Government to clarify what has happened, but it has not had the effect of clarification. It will have, possibly unintentionally, the effect, if it is passed, of restricting the rights of religious groups to work with those of the same views, holding the same religious convictions, and it will, if passed, create the confusion it seeks to avoid. Therefore I, too, support Amendment 98.

Lord Pilkington of Oxenford: My Lords, I want to widen the debate somewhat, because it touches the very roots of democracy in society. It has been a fundamental principle of the democratic state, certainly over the last 100 years, that independent corporations within the state have a freedom and enjoy a freedom. Churches and faith groups are independent corporations. Their life does not spring from the state, but from within their own communities. Freedom, for them, means the right for their members to follow the rules of their faith, provided it does not offend decency or public order.
	Even in a different age, less democratic, more intolerant than our present age, this principle was observed. In 1795, the narrow Protestant Parliament of Ireland gave £8,000 to the Catholic Church to build the seminary at Maynooth. The English state, when the Union of Parliaments occurred, continued with this grant, which rose to about £26,000 a year, a lot of money in the early 19th century. The Bill alters all this and we are in grave danger of using the ideology of equality to question the demands that faith communities make on their pastors and followers.
	Traditionally, faith schools-the essence of faith in many cases: the Roman Catholic Church almost bankrupted itself to create its schools-demanded that their staff followed the practices of the faith that the school represented. This was certainly the case when I was briefly in charge of a parish in the early 1960s, when teachers in local schools were expected to respect the faith that the school represented and on which the faith had spent large sums of money. The Bill seems to me to restrict this right to employ members of their creed and those who practise their moral code only to those who are pastors, priests or teach doctrine. I think it ought to extend to many more people, particularly teachers in schools, and not be restricted to that narrow area.
	I return where I began: that hard-fought right of independent corporations to express themselves is an important element of what we mean by freedom in the state. Dictators always restricted these rights of churches, trades unions and more, and this, in a funny way, is what we are doing at the moment in the interests of ideology.
	In France, savage anticlerical legislation was passed in 1905. The result was 50 years of conflict-fifty years in which charitable activities were restricted-and we see a faint sign of how that could occur with us in what has happened to the Catholic Children's Society. It is a paradox that in the early 19th century the narrow, intolerant Protestant minority was prepared to build a Catholic seminary and that our generation, which is supposedly generous and understanding, is actually restricting the rights of church bodies and inaugurating conflict that can only do harm. I beg noble Lords to support the amendment.

Baroness Turner of Camden: My Lords, these amendments deal with the requirements which an employer with a religious ethos may demand of his employees. Clearly, the Bill does not intend that an employer with a religious ethos should be able to require that all employees, irrespective of the job for which they are employed, must be adherents of the employers' religion. It does, however, provide for certain exceptions. It is clear that the Government's amendments in this group are intended to set out clearly that an employer may not insist on such a requirement for most jobs, only for those that relate directly to the purposes of organised religion. Amendment 99A sets this out very clearly, and I support it; it clarifies wording that is not as clear as some of us would like.
	I oppose Amendments 98 and 99. The Bill allows an employer with a religious ethos to employ people with protected characteristics only if it is,
	"a proportionate means of complying with the doctrines of the religion",
	or,
	"a proportionate means of avoiding conflict with ... a significant number of the religion's followers".
	The amendments, however, seek to remove the words "proportionate means". This is not acceptable. It is an attempt to interfere with the rights of others, which the Bill intends to protect. It is unfair, unjust, and more likely to lead to conflict than anything else. Do the movers of the Bill really see any virtue in being disproportionate? Of course not. The Government have attempted to meet concerns that have been voiced by certain religious groups, and I therefore hope that they will insist on maintaining the wording.

Lord Davies of Coity: My Lords, noble Lords might recall that at Second Reading and on the second day of Committee I expressed my fear that the Christian church was being marginalised in this country. I believe that the Government understand this, hence their own amendment, but like other Christians I believe that their stance does not go far enough. I shall therefore vote for Amendment 98, moved by the noble Baroness, Lady O'Cathain, and supported by the right reverend Prelate the Bishop of Winchester and my noble friend Lord Anderson. If the amendment fails to be accepted, I will not oppose the Government's amendment simply because half a loaf is better than no bread at all. It was my Christian faith that guided me into the trade union and political movements and that led me to be for the abolition of the capital punishment long before it was abolished in this country. My support for my Labour Government is second only to my Christian faith. The standards and morals of the Christian church makes this country a much better place, and I shall always oppose any measures that seek to marginalise the Christian church.

Lord Lester of Herne Hill: I hope in this debate that I am the lighthouse and not the aircraft carrier, but we will see. Before I come to the law, I want to mention the episode of the noble Lord, Lord Sainsbury of Turville. I think it was I who pressed him because I was concerned that the then regulations were too broad and would allow a religious body to discriminate against a lesbian cleaning lady. That concern led to the judicial review in the Amicus case and Mr Justice Richards, as he then was, giving a strict interpretation of broad regulations indicating that they could not be read in a loose way. I say that to avoid some misunderstanding which has been expressed about that case and his judgment.
	Amendments 98 and 99 would remove the principle of proportionality. That is a general principle of European law by which the United Kingdom is bound. The amendments would remove that principle as regards differences of treatment made to comply with the doctrines of a religion. As has been said, there are a number of exemptions for religious requirements in paragraph 2 of Schedule 9 relating to sex, marriage, sexual orientation and so on. For example, in certain circumstances it is permissible, for the purposes of religious employment, for a difference of treatment to be made in accordance with a requirement either not to be of a particular sex or relating to sexual orientation-quite right, too.
	Under the Bill, these exemptions must be applied in a manner that is a proportionate means of complying with the doctrines of religion. Removing proportionality here, as these amendments seek to do, would mean that any religious organisation could implement the requirements without a sense of proportion and in breach of the general principle of European law. In other words, the organisation could lawfully use its powers in a way that was excessive. That would inevitably lead to complex and costly litigation, as happened in the Amicus case, in our and the European courts, the outcome of which would be to require the principle of proportionality to be applied as part of the law of the land, whatever the movers of these amendments and the seven Bishops now present may say. It is the law under European law and it is the law of the land. Proportionality is required whether they like it or not.
	In my view-James Dingemans QC takes controversial views on some of this in other contexts, with great respect to him-Amendments 98 and 99 are outwith the scope of Article 4(1) of the EU framework directive, while Amendment 100, in opposition to government Amendment 99A, would also clearly be incompatible with European Union law. In view of the way the debate has gone, it is important to have regard to what is meant by proportionality. The European principle of proportionality is at the heart of the Bill. It requires a fair balance to be maintained between rights and freedoms where they compete or conflict with each other. The principle of proportionality is inherent in European Union law, European convention law and our own law. It applies to our legal system via the Human Rights Act and specific legislation such as in the Equality Bill. That principle is allied to the European principle of legal certainty.

Lord Pilkington of Oxenford: Would the noble Lord explain how other members of the European Community-France, for example, and Germany to some extent-restrict teaching in their faith schools to members of the faith and the practice of the faith? How have they avoided the European Court?

Lord Lester of Herne Hill: I am not addressing the issues about faith schools at this stage and it is confusing to do that. I promise that we will come to that. But I am keen, and it is very important, to stick to the issues with which we are now concerned. Faith schools are another difficult matter to which we will come later. In addition, the European principle of legal certainty requires that civil rights and obligations, such as the right to equal treatment without discrimination, be clearly stated and that the exceptions to the rights also be clearly stated so that the law is intelligible and accessible. We, and the Government, have to try our best to meet the principles of proportionality and legal certainty as law makers.
	A restriction on a right or freedom has to be a proportionate interference. There must be a reasonable relationship or proportionality between the means employed and the aim pursued. The European courts and our courts have made it clear that the means used to impair the right of freedom must be no more than is necessary to accomplish the legitimate aim. Here, we are concerned with the fair balance required between the fundamental right to respect for one's private and family life without discrimination, and the fundamental right to freedom of thought, conscience and religion. Those rights are protected by Articles 8, 9 and 14 of the convention and by EU equality law.
	A core aspect of self-determination and individual autonomy is the protection conferred by Article 8 of the convention on sexual relations and what are called "proclivities", sexual orientation and identity, all of which are part of the core aspects of an individual's private life. For example, decades ago the archaic law treating homosexual conduct as an offence, even if conducted in private and between mature and consenting adults, was held to be contrary to Article 8, and we had to change our law.
	The Bill protects gay and lesbian individuals against discrimination. But, like the regulations it replaces, it includes necessary exemptions to accommodate the fundamental right to freedom of thought, conscience and religion, exceptions well recognised in the EU framework directive. In other words, the right to be protected against sexual orientation discrimination is not absolute. The same applies to freedom of conscience and religion. There are no absolutes here.
	The Strasbourg court has made it clear that the controlling doctrine is that of proportionality. A classic example was the case about the bar on homosexuals in the Armed Forces. Religious and other beliefs, and convictions, are part of the humanity of every individual, including atheists, agnostics, sceptics and the unconcerned. It is only the manifestation of religion or belief that may be subject to prescribed limits. That reflects the fact that the way that beliefs are expressed in practice is what can impact on others.
	Despite the protestations made by senior clerics, including those on the Benches here, I believe that the measures in the Bill accommodate the reasonable needs of the churches and other religious organisations to manifest their beliefs and to practice their faith in accordance with their beliefs, subject to the overriding requirement of proportionality. I find it astonishing and deeply depressing that the right reverend Prelates should find the principle of proportionality-a principle which is deep in Christian ethics-to be a principle to be removed from this Bill. I am, frankly, appalled that that should be the position.

Noble Lords: Oh!

Lord Lester of Herne Hill: I believe that the Bill strikes a fair balance and that the removal of the principle of proportionality would be clearly contrary-

Baroness Butler-Sloss: Does the noble Lord see any difference between the wording in Regulation 7(3), which did not have proportionality, and the word "proportionate" in the amendment.

Lord Lester of Herne Hill: Of course there is a difference in the wording. But in each case, under the regulations and now, the European principle of proportionality has to be complied with. Therefore, it is highly beneficial that the law now makes it clear in the current wording, which is why the principle of proportionality is clearly spelt out. It does not change anything in existing law, since it was always the case, as the Amicus case demonstrates, that any exception must be strictly construed in accordance with European law.
	We have been here before, in 1998. I am not sure who else remembers what happened during the passage of the Human Rights Bill. At that stage, amendments were approved in this House, as could happen today, to give specific protection to religious beliefs because of concern among the churches that the Bill might force them and their members to engage in acts contrary to their religious principles, for example in relation to whom they would marry in a church or whom they would employ. Those amendments, as were subsequently shown, were wholly inappropriate and unnecessary. By a concession made to the churches, however, Section 13 of the Human Rights Act was included, which states:
	"If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right".

Lord Campbell of Alloway: Those amendments were moved by me to get religious toleration an exclusion from the very sort of position that the noble Lord is talking about. I withdrew the amendment because an arrangement had been made with Lambeth Palace. I never saw the arrangement; I do not know what it was, but I withdrew the amendment, so it was never in fact enacted.

Lord Lester of Herne Hill: My memory is normally terrible, but I think what happened was that the House did approve them, the Commons disagreed and then by compromise Clause 13 was put in. Perhaps that is beside the point at the moment. The point I am making is that all of this happened then. A concession was made, there has been no subsequent case in which the concession was ever needed, because in practice the Human Rights Act did not affect the churches, but the same kinds of concerns were then expressed.
	The Equality Bill gives very strong protection to the rights and freedoms of the churches and religious organisations and, if I can take up the word used by the most reverend Primate the Archbishop of York, I agree with him that magnanimity is of the essence. The Government have in fact, although you would not think so from some of the responses, been magnanimous in the way that they have included Amendment 99A. I am not going to go over the ground on this amendment, but I would like to explain about the framework directive because it is really important. UK law has to implement the directive and it is important for the Bill to ensure full compatibility. In my view, it does so if it is amended as the Government propose and if its present text is approved.
	The Bill and Amendment 99A maintain a fair balance between conflicting rights and freedoms and meet the obligations under the directive. In the Amicus case, the High Court held that Regulation 7(3) of the old regulations does not interfere with rights under Article 8(1) of the convention and that it strikes a fair balance. As I have explained, however, the problem about Amendments 98 and 99, which I very much hope will not be approved today, is that they overreach in seeking to widen further the rights of churches and religious organisations to discriminate because of someone's sexuality. They are not compatible-I would love to know whether the Minister and her legal advisers agree with this-with the UK's obligations under the directive.
	You will be glad to know that I am not going to quote the directive. It goes into great detail. The current wording reflects current law. The Government amendment is even clearer and faithfully reflects the scope of the exception currently in the old employment regulations. I am glad that the Minister has clarified that Amendment 99A would not permit sexual orientation discrimination against those involved in youth work. I consider that Amendment 100 would allow, although that may not be the intention, arbitrary and disproportionate discrimination by religious organisations and therefore should not be accepted.

The Lord Bishop of Winchester: The more I listen to the noble Lord, the more I find, as was the case when I listened to the noble Baroness, Lady Turner, that I am glad that my name has been added to the amendments tabled by the noble Baroness, Lady O'Cathain. It simply is not true to say that those on this Bench have no interest in or respect for proportionality, and of course that is engaged in all this. I have a vivid memory of conversations I had in my previous post with a Muslim cleaning lady in a voluntary aided church school in the middle of Stoke-on-Trent. She was entirely properly engaged there and, rather intriguingly, she was extremely impressed with the Christian religion as she found it enunciated in the school that her children attended. But it was entirely right that she should be an employee of the school in that role.
	It is of course true that proportionality is a requirement in European law, but as I understand it, the 2003 regulations, as Her Majesty's Government successfully argued in the Amicus case, themselves strike a proportionate balance and there is no need for the legislation itself to employ the term in order to achieve proportionality. Indeed, as the noble and learned Baroness, Lady Butler-Sloss, so carefully drew out-it is a privilege to be among those who support the amendments with her-adding the word "proportionate" now is likely to change the interpretation that the courts will make of this legislation. It will require the courts to inquire into the precise nature of the particular religious doctrines in order to discover what is the minimum necessary to comply with them. I am advised that the existing 2003 legislation already complies with EU proportionality requirements without giving rise to legal wrangles of this kind about doctrines. That seems to be common sense and sounds to me, although I am not a lawyer, like responsible law.
	The question that has not been adequately answered is why the Government, having said all along that they are consolidating and replicating-we have heard that word this afternoon-find themselves introducing this fresh material when, again so far as I understand it, they won the case in the High Court which alone could justify bringing the word "proportionate" into the sections that Amendments 98 and 99 seek to remove it from, and thus go down the road of Clause 2(8) as it appears in the Bill. As others have said, the beauty of Amendments 98 and 99 is that they restore the status quo, which we believe to be entirely defensible. I am not convinced by the noble Lord's language about the magnanimity of the Government. On the contrary, I reacted with a real pang of regret when the Minister said that she still sees no problem with Clause 2(8), but perhaps it was important to "clarify but not change", to use her words. However, it is precisely because the subsection is so profoundly objectionable to us that the only way forward is its removal, and here I bring into play the considerations enunciated by the noble Lord, Lord Pilkington. I shall not go into the detail so beautifully laid out by the noble and learned Baroness, Lady Butler-Sloss, which makes it clear why we reckon that government Amendment 99A will make for a great many more problems than removing the amendments altogether.

Lord Lester of Herne Hill: Is the right reverend Prelate aware that Article 4(1) of the framework directive states specifically that the characteristic in question must constitute,
	"a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate"?
	What is wrong with putting that obligation expressly into the Bill so as to conform fully with European law?

The Lord Bishop of Winchester: Obviously I am aware of the material from which the noble Lord has quoted, but it remains my contention that, granted that the Government's primary intention as I understand it is to consolidate legislation into a single Bill, to draw in a fresh use of that word at this point is likely to do a great deal more mischief than good. That said, it would be rash-

Lord Wedderburn of Charlton: I hesitate to interrupt the right reverend Prelate again, but surely the word "proportionate" is already implied by European law. Therefore, for our statute to use the same word is merely accepting a European legal doctrine. Where is the freshness?

The Lord Bishop of Winchester: The freshness is because the Government have all along said, although we have not accepted it, that they are consolidating and replicating, rather than narrowing, the legal provisions under which we act.
	It is important at this point in the debate to revisit two areas. The first is why these questions are of such importance to churches, religious organisations and charitable organisations with a religious ethos. For centuries, religious organisations and churches have employed lay people in senior administrative and pastoral roles. The question that the noble Baroness, Lady Butler-Sloss, raised from Ellel Ministries is an important one-namely, to check that such organisations would not fall foul of this legislation if they were seeking to employ people necessary for the working of their organisation. That was the fundamental point made by noble Lord, Lord Pilkington. Churches need to be able to appoint members, either of their own particular church or of some other, who are of good standing and whose ways of living and behaving advocate and credibly represent, rather than undermine, the Christian faith and the objectives of the organisation concerned-not, as I have already said in relation to the word "proportionate", cleaners or people doing the books or whatever, but people representing those organisations according to one bullet point or more on their job description.
	My anxiety is that, notwithstanding a huge amount of work done by the Roman Catholic Church, the Church of England, the Evangelical Alliance and a range of other organisations, we still seem not to be getting across the sheer reality in so many churches. With youth workers, for instance, many a parish in my own diocese employs lay people as part of the paid staff under the leadership of the minister to work with students, families and children. Listening to the noble Baroness just now, I had the vision either of a whole new department of state responsible for vetting all these contracts to see whether these people were a genuine occupational requirement, or of the churches being burdened with endless lawsuits of one kind or another. I have a lay assistant, not a chaplain, who represents me in a whole range of ways; his job description notes that he does so. Is it not entirely reasonable that he should be a Christian of good standing whose life tallies with his Christian profession and who is therefore able to represent me, not someone living in some quite other way so as to make his representation impossible and to undermine my own activity?
	Churches, religious organisations and charities have senior lay staff, one element of whose responsibility is to represent the convictions, character and vision of their organisations. I was glad that the noble Baroness mentioned some of those. It is a matter of great importance to us. The same is true of the senior staff of the Evangelical Alliance. An English diocese in the Church of England has a diocesan secretary-the head of its diocesan administration-who is almost always lay. It would be impossible for us to work with that woman or man, representing us widely in a whole series of contexts-

Lord Harries of Pentregarth: I am sorry to interrupt the right reverend Prelate, but the whole tenor of his speech seems to be in support of the Government's amendment. I cannot at the moment distinguish his position from what has already been made clear by the Government about the kind of categories that will be included-the very categories that he is mentioning.

The Lord Bishop of Winchester: That is not the point, as I and others see it. It seems precisely that, just as the noble and learned Baroness, Lady Butler-Sloss, noted, this language of "exists" threatens to narrow rather than to replicate the existing law and threatens to lead us, because there are people who want to bring cases against churches to test all this out, into defending an utterly unnecessary series of legal actions. We are as aware of the question of proportionality as anyone else is and we know the background law. That is my response.
	My anxiety is that the kind of things that I have been speaking of make paragraph 2(8), as we have been saying for months, simply an unrealistic nonsense. The situation is little improved by government Amendment 99A. The Government are quoted in paragraphs 175 and 176 of the Joint Committee on Human Rights scrutiny report as saying that they are confident that they understand the legitimate needs of the churches in this matter, but their own amendment undermines that still further. It is for that reason that I ask the Committee to support Amendments 98 and 99.

Lord Warner: Does the right reverend Prelate accept that, even if this Committee passes the amendments proposed by the noble Baroness, Lady O'Cathain, the reality is that he will be governed and restrained anyway by the framework directive, so he will be back straightaway in the position that the Government's amendment produces?

The Lord Bishop of Winchester: No. We have heard that point argued on different sides of the Committee by eminent lawyers and I am by no means convinced that the noble Lord is accurate in what he has said. If he were, the points made by the noble Lord, Lord Pilkington, who is no longer in his place, would be exactly exemplified.

Lord Lester of Herne Hill: My Lords, the right reverend Prelate said that I have not been accurate. Does he mean by that that I have misquoted the directive and its reference to proportionality, or the case law? What exactly does he mean?

The Lord Bishop of Winchester: My Lords, that would be a case for a judge, not for me.

Baroness Deech: My Lords, I have thought long and hard about this matter and I wish to share a short and general thought on the issue. Equality, human rights and freedom have become in themselves a religion or a philosophical belief-almost organised, in fact, given the number of bodies that exist to enforce them. We have, therefore, a clash between two sets of religious or philosophical beliefs and I see no reason why one should be superior to the other. Indeed, equality, freedom and human rights have grown out of the older established religions. To prevent the older established religions from continuing to teach their principles will, in the end, produce a generation that cannot see the point in equality, freedom and human rights, the justification for which lies originally in religion.
	Since we are, in my view, dealing with clashes of philosophical beliefs, there is a danger for those who uphold equality, freedom and human rights-I, of course, am one of them-that this becomes like a juggernaut, crushing all other religions. Anyone who stands in the way gets the sort of treatment that reminds me of what took place when there were clashes between the organised religions a few hundred years ago. It behoves those who believe in equality and freedom to be magnanimous and tolerant and to allow other religions the same freedom that equality itself, and all that goes with it, has.
	It is for that reason that I support the amendments tabled by the noble Baroness, Lady O'Cathain-with one other proviso. Court intervention in religious matters has not worked well. If, according to European law, we must be proportionate, writing that into the legislation is unnecessary because it is there anyway. However, the courts have great difficulty. I instance a recent judgment about a faith school where the noble and learned Lords of the Supreme Court-not always Lords now-admitted that it was a shame that the case had come to court and that what was being done was not at all appropriate. We ended up with a rather sad judgment, which flew in the face of the way in which Jews have defined themselves for thousands of years. The intervention of the court should be avoided if at all possible. It costs hundreds of thousands of pounds and may not be appropriate.
	This is a case for magnanimity, tolerance and flexibility. Therefore, I urge your Lordships to support the amendments tabled by the noble Baroness, Lady O'Cathain.

Lord Graham of Edmonton: My Lords, I rise to make a brief intervention. Over the weekend, I listened to the warning given to this House that today there would be a big issue that should merit our attention. The House is aware that, over the years, in religious matters, I have not played a part-never mind a major part. However, I was moved to reflect on this situation.
	Many people in this House-and some make a declaration of it-are Christians, with beliefs and doctrines, and a life encompassed by a religious phrase. I confess that, at my age, I have been open to persuasion from a great many people and a great many causes but have never been moved to declare myself a Christian with a capital C. When I look at what Christianity is-its precepts and concepts-I subscribe to them. When I was younger, I was a Sunday-school teacher, which I enjoyed. When I joined the Royal Marines in 1943 and the man in charge said, "I now need to take down your religion," I said that the only religion I could remember is the Congregational Church and that I was a member of the Boys' Brigade. He said, "Right. You're an OD." I asked, "What's an OD?". An "OD" stood for "other denominations".
	I have gone through life not moved as obviously as so many people here, and in other places, are by these issues. When a Bill appears, people can see that there is an aspect to it that needs to be varied, words changed. I came to the Equality Bill not moved by a religious fervour, but moved by the kind of things that most people understand by a lack of equality in gender, economics and many other ways.
	What the Government have been doing, defending and attacked for doing is listening to what has been said. It remains for the House to decide whether they are right or wrong. In a few minutes time we will go through the Lobbies.
	I cannot recall that people in my former seat of Edmonton talk of little else but proportionality or things like that. Quite frankly, most ordinary people are not moved by the issues that are taking centre stage here. An hour ago, the Government and the Leader of the House were trying to get the wording as right as possible.
	Amendment 98 states,
	"leave out 'application is a proportionate means of complying' and insert 'requirement is applied so as to comply'".
	Noble Lords might be able to understand the tautology there, but it is rather difficult for someone like me to do so. Amendment 99 states,
	"leave out 'application is a proportionate means of avoiding conflict' and insert 'requirement is applied so as to avoid conflicting'".
	We have preconceived ideas of where we stand in the political spectrum, but I believe that the Government are trying to give the House its best shot to deal with inequalities.
	Reference has been made by more than one noble Lord to the briefs that they have received. I have not received those briefs, but I received briefing from the Humanist Association and other bodies. I respect those bodies and I read the briefing. The issue on which I received more representations than any other was Section 28. I received more than 500 letters on that. Out of courtesy I replied to all of them and said that I would listen to the debate and take note. I cannot believe that the issue we are discussing will arouse as much passion as Section 28. That issue, which was so big and aroused such strong feelings, was accepted and has faded, and the Government have done their best to move on.
	As regards religious tolerance, I detect that certain words indicate that the Church of England and religious bodies and faiths feel that they are being attacked, undermined or not listened to. I do not speak for the Minister or for the Government, but, frankly, that notion is laughable and ludicrous. The Government are trying to do what they believe is right and are listening very carefully. The Minister will point out that the last thing this Government want is another fight with somebody else; they have enough on their plate and do not want any more. The Government deserve support for their attitude to the Bill, and will get mine.

The Lord Bishop of Exeter: My Lords, I am grateful to the noble Lord, Lord Lester, for taking us in his inimitable way through the wider complexities of European law and regulation. I should like to return to that.
	Reference has been made to the reasoned opinion of the European Commission concerning the implementation in the UK of the EU equality and employment directives. I fully accept the assurance that Amendment 99A is not a response to that reasoned opinion, but is motivated by listening to the concerns of the churches and other faith communities and trying to meet them, for which I am grateful. However-there is always a "however"-there is a further sense in which the EU context is, I believe, both relevant and instructive. The only other two EU states against which infraction proceedings have been taken to date in connection with the employment framework directive and the equal treatment directive are Ireland and Germany. In Germany, concerns have been expressed by the churches which are very similar to those expressed in the Chamber today. In the light of those concerns, that part of the infraction proceeding dealing with the churches has been withdrawn for various reasons, the main one being that Germany, like many countries in Europe, has a written constitution with a self-determination clause for churches, and so the demands of the churches were deemed to be reasonable.
	In the UK, we lack such a written constitution, which is perhaps something to be regretted. However, where we stand at present is that implicit in the law as it stands is an acceptance of such faith community self-determination. My problem with the Bill, and the amendment tabled by Her Majesty's Government, is this-and I think it is to this that the noble and learned Baroness, Lady Butler-Sloss, and others have alluded-that it takes us yet a further step away from such self-determination and in the direction of state, court or tribunal determination in matters which touch the very heart of religious faith and life. It is for that reason that I welcome the amendments in the name of the noble Baroness, Lady O'Cathain, and I do hope that your Lordships will welcome them too.

Lord Tebbit: I will just make one short observation. It seems from what has been said from the Benches opposite and from the noble Lord, Lord Lester, that we have a choice tonight-whether we walk in fear of the law of the Lord or the law of Brussels. I know which way I am going.

Lord Lester of Herne Hill: Before the noble Lord sits down, would he agree that the rule of law-

Noble Lords: No!

Baroness Warsi: My Lords, that is a very interesting point at which to rise. I noted earlier the comments made by the noble Lord, Lord Davies of Coity, about his commitment to his religion over his commitment to his political party. As a Muslim I am quite concerned these days to talk about my commitment to my faith as opposed to my commitment to anything else because I may occasionally be seen as a security risk.
	On Amendments 98, 99 and 100 tabled by the noble Baroness, Lady O'Cathain, or the alternative government Amendment 99A, we have heard addressed the definition of employment,
	"for the purposes of an organised religion".
	Powerful arguments have been put forward by the noble Baroness, Lady O'Cathain, the most reverend Primate the Archbishop of York, and the noble and learned Baroness, Lady Butler-Sloss. As the law stands, where the employment is for the purposes of organised religion, an employer may apply a requirement for a person to be of a particular sex, or not to be a transsexual person, or make a requirement on the basis of the employee's marriage or civil partnership status or sexual orientation, as long as the requirement is in line with a genuine occupational requirement,
	"for the purposes of an organised religion".
	We believe that the Bill as currently drafted significantly narrows the scope of roles which would be included as,
	"for the purposes of an organised religion".
	It does this by narrowing the definition of employment in this context to those roles which "wholly or mainly" involve,
	"leading or assisting in the observance of liturgical or ritualistic practices of the religion,"
	or,
	"promoting or explaining the doctrine of religion".
	There is a clear difference between a more general "purposes of all religion" and the more narrow specification of what that entails. The current law is contained in regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, which states that a requirement may only be imposed by religious organisations "so as to comply" with religious doctrine or "so as to avoid conflicting" with religious convictions. The drafting of the Bill would add a requirement to be proportionate, which introduces another layer of legal necessity and so means that it is further removed from the status quo.
	As this Bill made its progress through another place and your Lordships' House, the Government have stuck firmly by their claim that they have only clarified and not narrowed the definition. I would question this for two reasons. First, the Government have claimed that there is a need to clarify the language. In another place, the Solicitor-General stated that,
	"there has been some confusion about what is meant by 'the purposes of an organised religion'",-[Official Report, Commons Equality Bill Committee, 23/06/09; col. 455.]
	and that further clarity was needed to "clear up misunderstandings". Yet we have seen no evidence of this. The only support we have heard for this claim of confusion is that there may have been some newspaper advertisements which claimed the exceptions were applicable to jobs when they should not have been applied.
	Can the Minister therefore tell us whether there has been any court or tribunal case about specific newspaper articles, and can she inform the Committee what evidence there is of detriment being suffered which would warrant the change in the law? I should state that I would be expecting to see a great deal of evidence to merit that change. The Government have stated time and again that they are not changing the law one iota, but just clarifying it. The fact that they have stuck so firmly to this line, in the face of almost overwhelming opposition and evidence to the contrary, suggests that there must be a powerful argument, backed up by powerful evidence, for the need for this further clarity.
	Secondly, the Minister will not be surprised to hear that we would like to raise the European Commission's reasoned opinion 226. Noble Lords will now be aware that the exemptions for organised religion passed in 2003 were broader than those allowed by the employment directive of 2000. Paragraph 19 of the reasoned opinion stated, however, that:
	"The UK Government has informed the Commission that the new Equality Bill currently ... before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive".
	This brings us to a difficult situation. We have been told that the Government have not changed the law at all, just clarified it. The European Commission has been told, although I hear what the Minister says in response, that it has indeed been narrowed to fit with the directive. Perhaps the Minister could-

Lord Wedderburn of Charlton: I am sure the noble Baroness would not wish to be unfair to the Government in any respect, but it has been argued that, for example, the doctrine of proportionality is already part of European law and was therefore part of the law in this area before this Bill was ever thought of. The fact that the Government have put in "proportionate" has not produced some fresh or new element; it has stated the law as it is, but making it much clearer that benefits for those of a religious persuasion that were not proportionate to the issue would not qualify. This is not therefore a new part of law, although some noble Lords sitting in front of me have argued points about law which are perhaps best left to judges-I would not say merely to lawyers. There is not a new element in what the Government propose.

Baroness Warsi: The noble Lord makes an important point and it is to clear up that confusion that I raised these questions with the Minister. If there is some confusion about what the European Commission says the Government have said, and what the Government say they have said, she should be able to tell the Committee where that confusion arises from. Can the Minister confirm whether appropriate representations have been made to the European Commission about its confused understanding of what the Government have or have not said to them?
	The Minister has taken time to inform the Committee of the Government's new Amendment 99A. We are grateful that the Minister has listened to the concerns voiced from all sides of the House and accepted that the wording in the Bill as it stands does not reflect the Government's claim for their intended policy. Nevertheless, we still find the definition unsuitable. Paragraph (a) makes it clear that Ministers are included, which the previous definition left open. Paragraph (b), however, contains a definition which, it seems, would be rendered the same as "wholly or mainly" in practice. This, therefore, still represents a narrowing of the current situation.
	We on these Benches are not asking the Minister to change to law and we are not asking for a new exemption for religious organisations, but the case of Amicus makes it clear. The confusion appears to be in the Government's drafting, in the inclusion of "proportionate" in the Bill. My understanding is that the Government may argue that to take out "proportionate" would raise questions both in the European Commission and in courts of law. We cannot argue that a particular amendment should not be passed because the Government drafted it wrong when they first drafted the Bill. I understand that the Government are making representations to the European Commission that the law as it stands complies. If that representation is being made and the Government believe it, what is the necessity to change the law? I hope that I have made it clear that we are merely asking that the status quo be preserved.

Baroness Royall of Blaisdon: My Lords, this has been an excellent debate on an important group of amendments. I have to say that some aspects of the debate have saddened me, but none the less it has been extremely important and reasonable in many ways.
	Amendments 98 and 99 are in the names of the noble Baroness, Lady O'Cathain and the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson and the right reverend Prelate the Bishop of Winchester. These amendments would remove the express test of proportionality in sub-paragraphs (4) and (5) of paragraph 2. In effect, paragraph 2 would state that complying with religious doctrine or avoiding conflict with strongly held religious convictions, are automatically proportionate occupational requirements.
	Paragraph 2 replaces and harmonises the two separate exceptions for religious occupational requirements in current discrimination legislation that my noble friend referred to when replying to the debate on my noble friend Lord Alli's Amendment 97E. The existing exceptions do not expressly include a proportionality test, as many noble Lords have said, but it is implicit, and its expression in paragraph 2 does not narrow the exception. It simply clarifies the existing law, reflecting, as the Joint Committee on Human Rights pointed out in its recently published report on the Bill, the approach adopted in the Amicus case to which I referred earlier.
	In the view of the High Court in that case, one of the existing exceptions, regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, is
	"on its proper construction, very narrow. It has to be construed strictly since it is a derogation from the principle of equal treatment; and it has to be construed purposively so as to ensure, so far as possible, compatibility with the Directive",
	that the 2003 regulations implemented. Regulation 7(3) was intended to form part of the implementation of Article 4(1) of that directive, which requires the implementing legislation-regulation 7(3) and, therefore, paragraph 2 of Schedule 9-to incorporate a proportionality test.
	The proportionality test is fact-sensitive, meaning that what is proportionate in any particular case will depend on the circumstances. Therefore, in a case being taken to an employment tribunal, this would require assessment by the tribunal, but it would not be necessary or indeed appropriate for the tribunal to determine whether the doctrines of a particular organised religion could themselves be said to be proportionate. Rather, the tribunal would have to decide, in the particular circumstances of the case, whether applying the requirement in question was proportionate to comply with the religion's doctrines or avoid conflicting with a significant number of the religion's followers' strongly held religious convictions. For example, it is unlikely that applying a requirement to a senior church representative not to be married to a divorcee would be a proportionate way of complying with the doctrines of the religion if the person's spouse previously had been married only briefly before converting to Christianity. I am very grateful to the noble Lord, Lord Lester, for his clear explanation of proportionality and the European law. I note the concerns expressed by the noble and learned Baroness and I shall return to those shortly.
	It is important to note that the proportionality test appears explicitly throughout the Bill. Removing the test from paragraph 2 of Schedule 9 would put this provision out of step with other exceptions for occupational requirements in Schedule 9 and other areas in the Bill where a test of proportionality applies. It is unclear what the courts or tribunals might infer from a difference of approach in this case.
	I come back briefly to the reasoned opinion from the European Commission. I am very grateful to the right reverend Prelate the Bishop of Exeter for his acceptance of the Government's position that I set out earlier. I hope that Her Majesty's Official Opposition will also accept that we did not inform the European Commission that the Bill will amend regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, to bring this position into line with the directive. That was incorrectly stated in the reasoned opinion.
	Opinions between the Commission and the relevant authorities in the member states concerned are confidential. We of course have to respond to the European Commission. It would not be appropriate for me to state everything that was in our response to the Commission, but the Commission has wrongly accused the Government of saying something. Therefore it would be entirely natural if the Government were to make representations to the Commission, pointing out that we had been wrongly accused. Perhaps I may put it in that way.
	I was asked why we are narrowing the scope of the existing exceptions by including a proportionality test. It is true that the existing exceptions, which paragraph 2 of Schedule 9 replaces and harmonises, do not include an express proportionality test, but they must be interpreted by the courts as if they did, in order to be compatible with European law. In response to the noble Lord, Lord Tebbit, that is not to say that in following European law we need not necessarily follow the law of the Lord. Therefore, for the sake of clarity, we are spelling out the requirement implicit in the existing exceptions. Not doing that would put the exception in paragraph 2 out of step with other exceptions for occupational requirements in Schedule 9, the wording of which has been harmonised. That is consistent with the Bill's fundamental aim to simplify and harmonise the law, wherever possible.
	The noble and learned Baroness, Lady Butler-Sloss, suggested that by adding proportionality the Government meant that the exception meant something different. Making the test explicit simply clarifies the existing law, reflecting the approach adopted in the Amicus case. That is also the view of the Joint Committee on Human Rights.
	I turn to Amendment 100, tabled by the noble Baroness, Lady O'Cathain, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson of Swansea and the right reverend Prelate the Bishop of Winchester. This amendment is necessarily consequential on government Amendment 99A, but of course the noble Lords wish to remove the definition in paragraph 2(8) of employment,
	"for the purposes of an organised religion",
	not replace it.
	Removing the definition would reduce legal certainty and be a recipe for confusion. Organised religions and people whom they employ or who apply to work for them would not know for certain to which posts a requirement related to sexual orientation, for example, could lawfully be applied. It would also increase the risk of the exception being misused. In the event of legal proceedings, employment tribunals and the courts could not be certain as to which roles Parliament intended the exception to cover.
	The noble Baroness, Lady O'Cathain, asked whether the Labour Party would expect Greenpeace to employ oil executives. This exception is not about the ability of churches or religious organisations such as charities to require employees to share their faith. There are separate exceptions for this in paragraphs 1 and 3 of Schedule 9. This particular exception allows churches and mosques to discriminate in limited circumstances because of sexual orientation, marriage, civil partnership and gender reassignment.
	In response to questions on the Government's amendment, I am grateful to my noble friends Lady Turner of Camden and Lord Graham of Edmonton for their support. The noble and learned Baroness, Lady Butler-Sloss, asked what "exists" means. It means the same as what my noble friend Lord Sainsbury meant when he used that expression during the passage of the 2003 regulations, which the High Court in the Amicus case interpreted. As I said earlier, the activity must be intrinsic to the role, but it need not be the entirety of the role. The noble and learned Baroness asked about a youth worker who taught Bible classes and drove the school bus. That was a good example, but, as I suggested earlier, the situation would depend on the purpose of the role and the nature of the work involved. Organised religions must be prepared to justify applying requirements of this kind on a case-by-case basis. It is important to emphasise that the exception applies to a very narrow range of employments.
	The right reverend Prelate the Bishop of Winchester and others suggested that the Bill as the Government wish to amend it would make it more difficult for people to bring forward exceptions, and there would be more tests, bureaucracy and activity in the courts. We do not believe that at all. This Bill is about maintaining the status quo: it certainly would not mean more work for lawyers.
	The right reverend Prelate the Bishop of Winchester also asked if paragraph 2 would prevent any lay assistant from being a Christian of good standing. It certainly does not prevent a lay assistant to a bishop from being a Christian. It would allow the application of requirements related to sex, marriage and civil partnership, and sexual orientation.
	The noble Lord, Lord Pilkington, spoke of the important principle of freedom. The freedoms that we enjoy and celebrate will not be affected in any way by the passage of this Bill. As I understand it, the noble Lord was arguing for the widening of exceptions. That would not be acceptable: we want the status quo. Like all Members of this House, I want to enjoy and celebrate tolerance and to continue to do so.
	As I mentioned earlier, the right reverend Prelate and others are under the impression that our amendment would mean a narrowing of the exceptions. That is not the case. Like the noble Baroness, Lady O'Cathain, we believe that there should be exceptions. There are exceptions, but there must be clarity; we do not want to leave any extra work for lawyers.
	The right reverend Primate the Archbishop of York asked if the Government amendment would be limited to posts which exist only to promote or represent the religion. The answer is no: the word "only" does not appear. As I have made clear, posts which exist to promote or represent the religion are not limited to posts which only involve one or more of these activities, but one or more of them must be intrinsic to the post.

The Archbishop of York: I am very grateful for the noble Baroness's explanation. However, I am still not sure what is meant by "exists to". Does that mean promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary characteristics? The Minister has to define that. For example, the Secretary General of the Church of England sits on the Archbishops' Council, takes its minutes and does a number of things. He exists to do that, but that is not the only definition of the role of secretary general. Sometimes you may find him accompanying me to something else, which has nothing to do with the General Synod of the Church of England. Can the Minister assure us that unnecessary arguments about the meaning of "exists to" will not be introduced? My argument with the Minister is to do with the drafting, not where the Government are going.

Baroness Royall of Blaisdon: My Lords, as I mentioned when I originally spoke to this amendment, the Secretary General of the Synod would certainly be covered. The point is that one of these characteristics must be intrinsic to the post: that is the test.
	Earlier on, the right reverend Prelate and the noble Baroness, Lady Warsi-

Baroness Trumpington: He is a Primate, not a Prelate.

Baroness Royall of Blaisdon: Primate, I beg your pardon: he is indeed a Primate, my Lady.
	They asked about court decisions. The point is that most cases do not come before a tribunal or court, however there is evidence that the absence of a definition caused confusion and that the existing exceptions were being misused. The Government received examples of where the exceptions appeared to have been inappropriately applied, such as advertisements by the Church of England for a pensions assistant and a director of finances.
	There has rightly been much discussion of the need for exceptions, and we respect that need. There has also been talk of magnanimity. Magnanimity is justice, but I believe that what we are doing is justice. The Government are providing clarity. They are not narrowing the provision; they are consolidating and replicating but they are also clarifying, and good legislation means clear legislation.
	The right reverend Prelate the Bishop of Exeter suggested that the amendment opens the Church up to more court intervention-I have spoken to this earlier. We believe that the opposite is true. By setting out clearly in the legislation the circumstances in which the exception applies, and therefore the balance of rights which must be struck, we believe that the courts will not need to adjudicate on these matters. As the judge said in the Amicus case,
	"it was entirely proper in the present case for the State to seek to balance the rights of homosexuals against those of followers of organised religions. The strength of feelings on both sides is amply demonstrated by the claims and interventions in these proceedings. The balance struck is proportionate".
	Our aim is to maintain that balance.
	The noble Baroness, Lady O'Cathain, rightly wants to stand up. She mentioned her package of amendments: I would like her to withdraw her Amendments 98 and 99, but if she tests the will of the House, I will wish to move the government amendment.
	Finally, I agree with the most reverend Primate that principles and values matter. Among the principles that we all cherish are liberty, tolerance and equality. I believe that what we are discussing and what the government amendment delivers adhere to those three principles which we all cherish.

Baroness O'Cathain: My Lords, I am very grateful to all those who have taken part in this debate. I am grateful to the Minister, whom I count as a friend even if we do not always agree. We have had some excellent speeches, and some particularly wonderful speeches from the Bench of bishops, which clarified a lot of things in my mind.
	The odd thing about this debate is that those of us who want to see Amendments 98, 99 and 100 succeed agree with government policy as stated by the Minister. The Government say that they do not want to change the legal position for churches when it comes to the ability to appoint staff-neither do we. They say that they do not want to narrow the exemptions-neither do I; neither do we. I just want the status quo. The noble Lord, Lord Lester, stated that we want to widen the exemptions. We have never stated that-we have never asked for a widening of the exemptions; we just want the status quo.
	Let us not forget that in 2004 the status quo wording was challenged in court by the Amicus union. The law of the land at present is the law as stated by our High Court in the Amicus case. This supports the original wording to which we want to return-not to the reasoned opinion of the European Commission, or, with respect, to the opinion of the noble Lord, Lord Lester.
	Finally, you will be glad to hear, I will speak generally about the Bill. In another place, Michael Foster MP, the Equalities Minister, told one national newspaper that churches should be "lining up (their lawyers)" in anticipation of legal challenges. That cannot be the right approach to protecting religious liberty, but without the package of Amendments 98, 99 and 100 that is precisely what would happen. We must keep the status quo, and I wish to test the opinion of the House.

Division on Amendment 98
	Contents 216; Not-Contents 178.
	Amendment 98 agreed.

Amendment 99
	 Moved by Baroness O'Cathain
	99: Schedule 9, page 165, line 8, leave out "application is a proportionate means of avoiding conflict" and insert "requirement is applied so as to avoid conflicting"
	Amendment 99 agreed.
	Amendment 99A
	 Moved by Baroness Royall of Blaisdon
	99A: Schedule 9, page 165, line 10, at end insert-
	"( ) Employment is for the purposes of an organised religion only if-
	(a) the employment is as a minister of religion, or
	(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others)."
	Division on Amendment 99A
	Contents 174; Not-Contents 195.
	Amendment 99A disagreed.

Baroness Hayman: I inform the House that if Amendment 100 is agreed, I cannot call Amendment 100A because of pre-emption.
	Amendment 100
	 Moved by Baroness O'Cathain
	100: Schedule 9, page 165, line 13, leave out sub-paragraph (8)

Baroness O'Cathain: I wish to test the opinion of the House.

Division on Amendment 100
	Contents 177; Not-Contents 172.
	Amendment 100 agreed.

Amendment 101 had been withdrawn from the Marshalled List.
	Amendment 101ZA
	 Moved by Baroness Turner of Camden
	101ZA: Schedule 9, page 165, line 26, leave out "an" and insert "a genuine"

Baroness Turner of Camden: My Lords, in moving Amendment 101ZA, I shall also speak to the other amendments in the group.

Baroness Thornton: Would noble Lords please leave the Chamber quietly?

Baroness Turner of Camden: Amendment 101ZA seeks to make a relatively minor amendment to the part of the Bill that lays down requirements relating to religion or belief. Paragraph 3(a) uses the words,
	"it is an occupational requirement".
	I want it to say, "it is a genuine occupational requirement". I do not suppose that anyone can really disagree with that, although we shall have to wait and see.
	The next amendment in the group relates to a rather more complicated issue. The intention behind it is to limit the ability of an employer with a religious ethos to require that an employee should be an adherent of a particular religion, normally the employer's own. The Bill provides for certain exceptions to be permissible in limited circumstances, but I do not see why an exception of any kind should be permitted when the employer in question provides a public service. This may increasingly come to be the case, as there seem to be arrangements in hand for charitable and religious organisations to take on responsibility for services that are normally provided by public-mainly welfare-services. Such services would normally have equal opportunities policies for their employees. There is no reason why a religious or charitable organisation that undertakes work in the public arena that is funded by the taxpayer should be able to insist that the employees who carry out the work should be of a particular religion. That is surely unfair and against the general ethos of the Bill.
	Amendment 101C, my final amendment in the group, would insert after line 31 on the same page of the Bill:
	"The exception under paragraph 3 shall not be used to justify discrimination on any other protected ground".
	That is important, because we are talking here only about religion and belief and we do not want discrimination against characteristics that are already protected quite specifically in the Bill-sexual orientation, disability and so on-to be possible somehow or other in this provision. That needs to be taken account of.
	I do not know why Amendment 125A, in the name of the noble and learned Lord, Lord Mackay of Clashfern, has been included in this group of amendments. I do not know what it intends, but it appears to relate to sexual orientation, which is one of the protected characteristics in the Bill. It is not appropriate for this group of amendments, but I shall listen with interest to what the noble and learned Lord has to say in support of it. On the face of it, I do not agree with it.
	The noble Lord, Lord Lester, has tabled a very similar amendment to mine. Again, I wait with interest to hear what he has to tell us, but my view is quite simple: a religious organisation that gives a public service does not have the right to insist that its employees should be of that religion. It is a very simple point and I beg to move.

Lord Lester of Herne Hill: I shall speak to this group of amendments as a whole. I cannot resist making the observation that, in the Division, the Lords Spiritual managed to vote as turkeys for Christmas-if noble Lords will forgive me for saying so-by removing the new and magnanimous protection that they were given. Proportionality was taken out of the Bill, probably encouraging the European Commission to suggest that our statutory powers will infringe its own and lead to further trouble. With this group, I will try to get clarification that the Bill will comply with EU law.
	Amendment 101ZA, in the name of the noble Baroness, Lady Turner, will insert "a genuine" into the phrase,
	"it is an occupational requirement",
	in paragraph 3 of Schedule 9. Can the Minister confirm that the amendment is not necessary because occupational requirement is already interpreted to mean a genuine occupational requirement when read in light of Article 4.1 of the directive? If that is confirmed, the need to include "genuine" becomes, as lawyers say, otiose.
	Amendment 101A seeks to insert the requirement that a public authority cannot apply the requirements exemption relating to employment for the purposes of religion or belief. Amendment 101B-my amendment-seeks to do the same thing. Both amendments seek to give effect to the exemption in Article 4.2 of the framework directive and consolidate Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003.
	Amendment 101C, in the name of the noble Baroness, Lady Turner, would write into the Bill what I think is the view of the European Commission:
	"The exception under paragraph 3 shall not be used to justify discrimination on any other protected grounds".
	Paragraph 3, as part of Schedule 9, deals with other requirements relating to religion or belief. The problem that the Commission may have raised is that the wording of the old regulations-and it seems this part of the Bill-contradicts the provision under Article 4.2 of the directive, which specifically says that permitted differences of treatment based on religion,
	"should not justify discrimination on another ground".
	Amendment 101C seeks to correct that. It is important because, as the noble Baroness, Lady Turner, said, some religious organisations have made it clear that they would seek to use this provision relating ostensibly to religion or belief to discriminate against employees on the basis of their private conduct-conduct relating to their sexual orientation or marital status. That is clearly outside the terms of Article 4.2 of the directive. We seek confirmation that that is so.
	Furthermore, the judgment of Mr Justice Richards, as he was in the Amicus case, makes it clear that lawful, private sexual conduct consisting of gay or lesbian sex is so closely bound up with sexual orientation that discrimination on the grounds of such conduct is not only unlawful-it is not a genuine occupational requirement under Article 4.2-but also direct discrimination and cannot be justified. Again we seek clarification. That is our understanding of the law.
	Amendment 125B is in my name but I have decided that there is no need to add to the complexity by pursuing it. Finally, Amendment 125A, in the name of the noble and learned Lord, Lord Mackay, would remove the exemption for sexual orientation in the provision of services by a public authority. As I understand it, his amendment would allow public authorities that provide services to discriminate against service users based on their sexuality. There are already a number of narrow exemptions for religious service providers but where they are publicly funded they should not be able to discriminate against those to whom they provide their public services. I do not want to go into the unanimous Court of Appeal judgment in the Ladele case-Heaven forbid that I should-where the registrar providing a public service refused to preside at a civil partnership registration, except to say that the judgment of Lord Neuberger, Master of the Rolls, and his two colleagues was, in my respectful judgment, inconsistent with Amendment 125A. We would therefore not support the amendment. I hope that that is clearer than mud.

The Archbishop of York: The noble Lord said that the Lords Spiritual were like turkeys voting for Christmas. Actually, the Government said that they wanted to keep the status quo. We voted for the status quo and not for something quite different. In the case that has been recycled endlessly here, the claimants challenged what was thought to be a breach of Regulation 7(2) under the directive, but Lord Justice Richards decided that it was not. We have voted not for Christmas but for the tranquillity and magnanimity that we found in the regulations that were passed a long time ago.

Lord Mackay of Clashfern: I will allow the noble Baroness, Lady Turner, out of her difficulty by explaining what my amendment is about. I have no responsibility for the grouping but I did not object, as I am delighted to be associated with her. The noble Lord, Lord Lester, joins in the fray a little later. My amendment has only a marginal connection with that of the noble Baroness.
	The problem is with what has happened. The Bill gives an opportunity of looking at the field that was taken up before by primary and secondary legislation. With secondary legislation there is of course no possibility of amendment except an out-and-out rejection. This is the first opportunity to look at these two matters together. This amendment was affected by the House of Commons procedures. It never got a full discussion as the click-if that is the right word-of the guillotine came down when the Member was moving it. The other place never really got to any discussion.
	Secondly, it is right that we should consider this amendment now. I repeat the point made by the noble Lord, Lord Alli, on his first amendment this evening: the words used in the Bill-and hitherto in the statute-are "sexual orientation". The last time I spoke on this subject I mentioned that, when the Commission originally made this proposal for the equal treatment directive, it pointed out that the discrimination factor was not sexual practice but sexual orientation. That is an important distinction. There is no reason why the provision should apply in respect of sexual practice. If it applied truly to sexual orientation alone, I would find it unobjectionable, but the fact is that, as a result of development, sexual orientation has now become associated with sexual practice. I do not see why there should be a restriction on a public authority or on organisations contracting with public authorities in that connection. It appears to me that it would be perfectly reasonable for a public authority, or an organisation that is contracted to and getting grants from a public authority, still to use its discretion in connection with matters of sexual practice.
	This issue was raised in connection with Catholic adoption agencies and grants. It is important to notice that, where a public authority or a contractor to a public authority is giving a service, it is the service that the public authority wants to pay for and to support. If the service is given, the mere fact that it is given in a particular religious ethos does not appear to matter, except from the point of view of choice. I do not want to reiterate the debate about Catholic adoption agencies, but one of the results was that, where a Catholic adoption agency decided to hold to the tenets under which it had previously operated, it just closed down. The result of that is only to destroy a successful, excellent service. It does not give the lesbian or gay community the slightest benefit, because the service previously offered is no longer available, but it means that a service that had success in difficult areas was closed. For my part, I cannot see the need for that.
	This matter goes much wider than the Catholic adoption agencies, but the same principle applies. Where a service is required and a particular group is in a position to give a good service, it should not be prohibited from taking part in a publicly funded exercise simply because it has a particular view and practice with regard to sexual practice. That is the reason for my amendment. I will not expound it at great length because it is quite simple. It is in this group because it deals with the same basic matter as the other amendments in the group.

The Lord Bishop of Winchester: My Lords, I welcome the amendment in the name of the noble and learned Lord and what he said about it. I was expecting him also to note that this is an area of the Bill where Parliament was particularly badly served by the practices at the other end of the Corridor. I believe that similar amendments were laid before the other place, but they were guillotined very quickly. It is a great pity that the House is so sparsely attended, given that we have such important business. I welcome the points made by the noble and learned Lord and I value the explication of the noble Lord, Lord Lester, of why Amendment 101ZA was otiose.
	I turn to Amendments 101A to 101C and 125B. The effect of the two amendments in the name of the noble Baroness, Lady Turner, and, if I understand them rightly, those in the name of the noble Lord, Lord Lester, seems to be an utter impracticality. They would be likely to have the effect, if they were passed, of driving Christian and religiously based organisations out of the market for providing publicly funded services and, therefore, of removing from government at every level, nationally, regionally and locally, the opportunity to buy in services of a particular faith-based character and of a particular quality of excellence. At the minute, as I understand it, it is very much the policy of the Government to do that, which is an element of their activities that I welcome.
	It is entirely impractical to suggest that a church or a faith-based organisation could be doing its work with its usual staff, for some of whom there would be a genuine occupational requirement of the sort that has been discussed under the Bill, but that, at the point when those same staff or that same charity were contracted to provide a service for government, whether national or local, the existing staff would not be usable for that purpose. The charity could not possibly employ another lot of staff or some other staff. There could not be two sets of staff and, if it was working without the staff doing its mainstream activity, it could not be offering the service for which it was contracted. If I understand the gist of the amendment in the name of the noble Baroness, Lady Turner, and the amendment tabled by the noble Lord, which is saying the same thing, I cannot think how that could be practical.
	Amendments 101C and 125B seem to be a further narrowing of exemptions and a further restriction on religious organisations or organisations with a religious ethos in offering public services and receiving public money for bits of their work. I take paragraph 176 of the report on the Bill by the Joint Committee on Human Rights to be the background to the noble Lord's amendments and his speech. The report states:
	"We are concerned about the status of employees of organisations delivering public services who find themselves as employees of organisations with a religious ethos who have been contracted to provide the public service".
	That seems to put the cart before the horse. An organisation would be contracted to provide a public service because it already provides that kind of service in work for which it does not receive public money. The report continues:
	"They have a right not to be subjected to religious discrimination on the basis of the ethos of the contracting organisation if they are otherwise performing their job satisfactorily".
	It is necessary to say again that, if those involved are people for whom a genuine occupational requirement is permissible, they will be representing the organisation with its faith-based ethos or the church. If their personal lives are contradictory to their own faith-based position and that of the organisation or the church, they will not be performing their job satisfactorily. That is the essence of this case and the reasons why Amendment 101C, which I now understand as I did not before, and Amendment 125B are insupportable.

Lord Lester of Herne Hill: Perhaps the right reverend Prelate would tell me whether he read the last bit of paragraph 176. The Joint Committee said:
	"We are concerned that the widespread use of the 'religious ethos' exception ... in Schedule 9(3) by organisations based on a particular religion or belief who are contracted to deliver services on behalf of public authorities could result in public functions being discharged by organisations in receipt of public funds who are nevertheless perceived to discriminate on the basis of religion or belief".
	Does the right reverend Prelate accept that that is a valid concern?

The Lord Bishop of Winchester: I read to the end of the paragraph and it is side-lined in my text. But I am intrigued by the language, "nevertheless perceived to discriminate". The whole paragraph makes my point that if this is the line to be taken by government, that could mean goodbye to many of these organisations being available to offer some of their work through receipt of public funds, and to serve the state and the public in that way. That is the logic of that because I do not believe there is widespread use. I believe the use being made is legitimate and, to use the word we have all been using this afternoon, "proportionate". It does not seem to me that they can be doing their job satisfactorily if they are in denial of the objectives of the organisation they are serving in their private lives. I do not believe, however, that any Christian's life is private in that sense. Our activities are before the public, whoever we are.

Lord Warner: My Lords, I support the spirit of Amendments 101A, 101B and 101C. I am particularly attracted to the elegance of Amendment 101B. Before I begin my remarks, could I say to the right reverend Prelate that I am a long-standing supporter of a mixed economy of providers in public services? I have no problems with that at all. Indeed, I spent six years as a director of social services doing just that in Kent and I have transferred public services into other bodies. However, one of the features of this kind of transfer when another body takes over public services is the discussions that take place around assurances being given to the staff who are being transferred from the public body. Usually one of the deals is that their conditions of services are safeguarded. That does not mean that they are going to be then subjected to inquiries about their religion and their private lives. It does not mean that they are going to be discriminated against when promotions come up. It is absolutely reasonable for a Government who are taking an Equality Bill through this House and through Parliament, and it is not discriminatory against the churches, to protect those staff in those circumstances from discrimination. As I understand, these amendments do just that.
	If we are not going to change the legislation in that way, we-and by "we" I also mean the Government-are accepting that level of discrimination, because the Bill does that. Sad to say, my honourable friend Vera Baird acknowledged that in the other place. She simply brushed aside the concerns in paragraph 176 of the report of the Joint Committee on Human Rights by in effect saying that,
	"the Government do not want to interfere with the religious ethos of the organisations, even though they deliver public services".-[Official Report, Commons, Equality Bill Committee, 23/6/09; col. 455.]
	I think that is rather sad, not because I want the Government to interfere in the ethos of religious organisations but I would like them to be more robust in protecting the position of staff who are going to be transferred. I say that as a supporter of some degree of transfer of functions from public bodies for the better delivery of services to other organisations. I do not expect my noble friend the Minister to jump up and say "What an insightful man you are, Lord Warner. We thoroughly agree with everything you have said and we are going to have a change of heart". But I ask her to consider some questions before the Government give up the idea of any amendment in this area.
	The questions the Government should ask are as follows. There are only five: First, when working under contract with or on behalf of a public authority, are organisations with a religious ethos permitted to put a religious requirement on a previously secular position such as a care worker? We need an answer to that. Secondly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of being made redundant or of dismissal should their new post have religious requirements attached to them which they cannot meet? Thirdly, if employees must reapply for their position with their new religious employer, is it possible that their lack of required beliefs might render them ineligible for the very post that they had previously held? Fourthly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of having their career prospects restricted because more senior positions have religious requirements attached to them? Fifthly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of having their career prospects restricted because activities, training and other benefits are restricted to those who fulfil particular religious beliefs?
	Those are all legitimate questions that trade unions, staff representatives or management should be asking before they transfer staff from a public to any organisation, religious or otherwise. It is particularly relevant when it is a religious organisation, which is what these amendments address. I do not expect my noble friend necessarily to answer all those questions now but I do expect her to give a serious answer in writing to those questions to reassure me and, I suspect, other members of your Lordships' House.

The Lord Bishop of Winchester: Does the noble Lord agree that he and I are talking at cross purposes about two quite different situations? I was speaking, as I should have thought was clear, and on what I thought was the matter being attended to, of organisations, either church organisations or of religious ethos, which find themselves contracted to undertake service on behalf of the Government and receive payment for doing so. The noble Lord is speaking of the transfer of organisations from the public service into the employment of a religious organisation. The points he is making have to be thought through. Some religious organisations might judge that to accept the kind of contract he is speaking of would so dilute their aims and objectives that they should not enter it in the first place. Some religious organisations which have agreed to such contracts have had their objectives so diluted that they have ceased to be what they were. But we were, I think, talking about two quite different situations.

Lord Lester of Herne Hill: Before the noble Lord, Lord Warner, replies, may I add a point that has not yet been made and which I think needs to be made? Under the European Convention on Human Rights and under the Human Rights Act, the United Kingdom has a policy of obligation to ensure that public authorities and bodies that are private but performing functions of a public nature, do not discriminate on the basis of a person's sexuality, among other things. That is an obligation which, to take the example of the noble Lord, Lord Warner, reaches beyond a public authority in the strictly formal sense to a body which is private in form but is exercising functions of a public nature which involves discrimination.
	The right reverend Prelate talks about a religious body which finds itself performing functions of a public nature and receiving state funding for doing so. I do not think it is a question of finding itself doing so-it chooses to do so. Instead of deciding not to have public funding and not to perform the service, it chooses to do so. Once it does, the United Kingdom has an obligation to ensure, on the basis of the case law I have seen, that it does not discriminate on the basis of sexual orientation, except in very narrow circumstances, such as necessity, proportionality and so on.
	That is why it is important to clarify the issues we are talking about to ensure that, when one contracts out functions that would normally be performed by the state to bodies that are "private", the reach of human rights law extends to them. If they decide not to accept public funds and not to perform a public service, that is their entitlement. One could say, however, that otherwise they might be having their cake and eating it and the poor old UK Government would ultimately be responsible for that, either under the Human Rights Act or under the convention.

Lord Warner: My Lords, to answer the right reverend Prelate, I do not think we were talking at cross purposes. I was very clear in what I was talking about: the legislation as it stands potentially discriminates against those people who transfer from a public body to an organisation with a religious ethos that is carrying out functions on behalf of a public body. I have a longer speech with which I will not delight the House tonight about the possible discrimination for the users of those services as well, but that is a matter perhaps for another day. I am speaking on the narrow point that we need to protect staff who are transferred from a public body to an organisation which has a strong religious ethos. The questions I have asked relate to that, and it is no good trying to pretend that we are not faced with a real problem here.

Lord Elton: The interests of the user of a service is surely not something for another day, but for us to consider when looking at these amendments. It seems to me that the issue has been extraordinarily absent hitherto because we have been discussing the rights of the people who deliver services.
	The effects of legislation which has been passed without democratic discussion in another place, first as secondary legislation and secondly under the guillotine, have been to very considerably injure the users of services, and that is what I hope your Lordships will concentrate on.

Lord Patten: My Lords, I support my noble and learned friend Lord Mackay in his Amendment 125A. Between us we just about represent the two ends of Christian practice in these islands, as indeed we live at their opposite ends geographically. It is a strange irony that my noble and learned friend should be leaping to the defence of the Roman Catholic Church, something I shall draw to the attention of the Archbishop of Westminster, who I am sure will be suitably grateful. We need help from whichever quarter we can get it.
	That said, my noble and learned friend and I also represent between us a determination to try to protect reasonable and centuries-old established religious freedoms rather than wishing to come up with some brand spanking new right or another. Indeed, the attacks by the present Government on historic religious freedoms that Amendment 125A seeks to correct have become so severe that in a new Parliament, I think that the pressure for an Act to protect religious freedoms will grow and grow. It will also be an issue in the forthcoming general election for individual candidates breaking this way and that. There will also be pressure to resist the present trends encouraged by the European Convention on Human Rights which surely was never meant to entrench that in all cases, and without exception, the individual automatically trumps the group or community. Surely there must be some continuing recognition, as Amendment 125A seeks to establish, that in a truly tolerant and pluralistic society, there is not simply a collective of individuals, for therein, in that attitude, lies totalitarianism.
	This was summed up very well by my noble friend Lord Bates speaking, as it were, ex cathedra from the Conservative Front Benches in his winding-up speech on 14 January in the debate introduced by the noble Lord, Lord Harrison, on toleration. My noble friend said,
	"there is growing intolerance towards people of faith ... they are being victimised. That cannot be right. I am sure that the pendulum has swung, but we need to remember that legislation and the pendulum were meant to correct something that was wrong".-[Official Report, 14/1/10; col. 687.]
	Amendment 125A seeks to recalibrate the pendulum's swing in the interests of religious tolerance, and in it my noble and learned friend has taken a very measured and careful approach. One reason that the pendulum may have gone a bit haywire, as pendulums do, is probably constitutional. As my noble friend Lord Elton just pointed out in his brief but telling intervention, when another place debated back in 2006-07 issues concerning not only religious adoption services but also the state of residential homes, the record shows that precisely four minutes was allowed for the debate on religious adoption agencies before the guillotine fell. My noble and learned friend speculated that guillotines fall with a click, but I think they come down with a clunk and a thud. But what is entirely wrong is that no time at all was allowed for debate on the position of those providing services in residential homes where there is a religious ethos.
	I understand from reports in the press that the noble Lord, Lord Butler of Brockwell, who is not in his place today, and other great members of the upper reaches of our mandarinate are producing a report for publication on Wednesday that will highlight a number of ways in which governments, in particular this Government, have failed to govern well. I understand that it is going to say that one of the worst things that has happened is that so much legislation has gone through another place with no scrutiny whatsoever. I believe that to be totally wrong and for it to have been done in such a prejudicial way as to try to attack historic freedoms and religious faiths of all sorts, not just Christian, in this country. I think it is on constitutional as well as on the other grounds that it is necessary to take a fresh look at the issue, and that is what Amendment 125A seeks to do.
	There are important human rights concerns here, but not just for service providers. As my noble friend Lord Elton has just so rightly pointed out, there are human rights that the legislation to which I have referred have trampled on. Let us take adoption services and the right of the child who needs a family and the rights of a family that wishes to adopt a child: what about those rights? I refer also to the rights of the providers of adoption services who sometimes are not so much concerned with their own personal and private lives but wish to provide services in response to faith beliefs and are moved to do so as an expression of their faith and their vocation-something which I believe this Government have treated with contempt, and I choose the c-word "contempt" with great care.
	Already, as the right reverend Prelate said in his speech, agencies run by, for example, various Catholic children's societies have stopped providing services for children and would-be adopters who need their help. For example, the Catholic Children's Rescue Society in Salford and the Catholic Children's Society in Westminster have been forced to cease their adoption work. What a triumph for the equality project that is. The recently retired CEO of the Westminster Catholic Children's Society said in giving the reason why the service has had to cease:
	"We would not be able to state within the context of adoption, that it is our belief that a married couple is better for children".
	I respectfully and admiringly agree with Mr Jim Richards-just for the record, once a Labour councillor and now in his happy retirement a deacon in the Roman Catholic Church.
	I would like to ask the Minister this: how many children does she think have suffered so far because of this legislation? How can the Government really claim to be in favour of diversity and choice? Do they not recognise that religious charities and trusts which contribute to the provision of adoption for the young or provide residential homes within a faith ethos for the elderly, the disabled or those with learning difficulties have their own ethos which should be respected? In logic there can be no case under any circumstances for insisting that religious groups operate against their beliefs unless they are the unique monopoly supplier. I have never known of such a unique monopoly supplier of any service for which public funds are provided.
	Surely, when we see equality laws to help one group-which I do not necessarily object to-are so constructed that they turn out to damage another group-which I object to very much-however worthy in their original aims, it seems that the whole equality agenda has lost its balance and begun to promote inequality, thus becoming an inadvertent tool for intolerance and the oppression of religion in these islands.
	So I hope that the Minister will contemplate carefully what my noble and learned friend Lord Mackay, my noble friend Lord Elton and the right reverend Prelate the Bishop of Winchester have said and agree to take away these issues to consider them before Report.

Lord Warner: Does the noble Lord not think that, when public bodies responsible for providing public services contract out with religious organisations, they have some responsibility to ensure that vulnerable people are safeguarded under those regimes? There are plenty of examples of religious organisations which have abused public trust in these areas, and we cannot always be sure that they will not proselytise for people who are not of their faith who happen to be in their care at a particular time. Does the noble Lord agree that perhaps things are not quite as rosy as he was suggesting?

Lord Patten: I do not much care for the noble Lord's smear of Catholic adoption agencies that they have somehow been involved in abuse or proselytising. I do not care for that at all. It is my belief that individual religious groups, as a testimony to their faith and beliefs, should be allowed, as part of the historic religious freedoms of this country, to provide a service to whoever wishes to buy it, whether it is the public sector or private individuals seeking to adopt a child or wishing to place their disabled or elderly relation, or adult relation with profound learning difficulties, within a religious community. The Government are totally wrong to take away from our churches and faith groups that historic right. This will come back again and again in the coming months. At the next Parliament, if we have not addressed these issues through amendments like the excellent Amendment 125A tabled by my noble and learned friend, many of us will be pressing for a Bill to protect religious freedoms in this country.

Lord Elton: Perhaps I may address the point that the noble Lord, Lord Warner, made. I am a little puzzled by his position. Presumably, a local authority can agree with an organisation with which it is making a contract what the terms of employment shall be for the purposes for which it is delegating the work. If it does not get a satisfactory agreement, it can either not transfer it to anybody or transfer it to somebody else. The local authority is not tied. It is not in a cleft stick. It does not have to go to a Roman Catholic organisation for adoption if it does not feel able to protect its transferred staff in the way it would wish to.

Lord Warner: I do not want to delay this debate much longer and I do not disagree with the noble Lord. I was really trying to counter the rather rose-tinted view of religious organisations being put forward by the noble Lord, Lord Patten.

Baroness Whitaker: I came into this debate not to speak but to listen. However, I am getting extremely confused. Perhaps my noble friend on the Front Bench can dispel my confusion. The amendments tabled by my noble friend Lady Turner appear to be excellent and to further what I understand to be the spirit of this part of the Bill and also Section 29 about services. Regarding employment and services, we are talking about functions carried out with the use of taxpayers' money by organisations acting as public authorities. I had thought that the purpose of the Bill was to make unlawful the discrimination, on various grounds, of people who either worked in these authorities or received the services. The amendments tabled by my noble friend Lady Turner appear to assist that.
	Then I hear from noble Lords opposite that, in fact, freedom is being attacked by this will to erode discrimination. That is why I am puzzled. The freedom not to be discriminated against is prime. Surely this Bill is not for an organisation using public money and refusing its services in a discriminatory manner. Incidentally, I am aware of several religious organisations which provide services and employment on behalf of the public which absolutely comply with the spirit of the Bill, so there does not really seem to be this peculiar posited battle between freedom and discrimination. I hope my noble friend can explain the primary purpose of the Bill.

Lord Hunt of Wirral: I thought that the primary purpose of this Bill was to simplify and codify the law. Perhaps I have come to the wrong place. We have just heard a very extensive, wide-ranging debate, which, as my noble and learned friend pointed out, has been greatly extended by the fact that these issues were not properly debated in the other place. There is a problem. If you neglect the elected House and impose timetabled Motions which then cut out debate on issues as important as this, you are not doing your job as a Government to be answerable to the electorate.
	Some very important issues have arisen in this debate. It started with the noble Baroness, Lady Turner of Camden, wanting to put in the magic word "genuine". We have not had much of a genuine debate about whether or not the word "genuine" needs to be inserted, which is technically what this debate is about, although there are a number of other amendments grouped. The most reverend Primate the Archbishop of York started off this debate so well when he said that surely what we have just voted for is tranquillity. He was responding to the noble Lord, Lord Lester, who said that the Bishops' Bench was a row of turkeys waiting for Christmas. If I may say so to the noble Lord, Lord Lester, I think the most reverend Primate was naturally very upset at that accusation. Surely what we want to do is to simplify the law and make it much easier to understand so that everybody knows what their rights are. I should not be confused, but I am a little uncertain as to what the Government are trying to achieve with this section. Is it preserving the status quo? Is it simplifying the law? Is it seeking to codify the law? I am not sure and we deserve an explanation from the Minister.
	In so far as Europe is concerned, the Government must be regretting certain parts of the Bill, which they were advised would strengthen their case with the European Commission. By voting to remove a portion of the Bill earlier, we have actually weakened the Government's case. It would have been a much stronger case had they never put those provisions in in the first place. I am not sure that they were needed.
	To go back to what is perhaps the most important principle, I agree with my noble friend Lord Patten and my noble and learned friend Lord Mackay of Clashfern. We have to strive to make sure that we do not create a situation where societies doing valuable work, often with the most deprived children, can no longer carry on that vital work. I agree with the noble Lord, Lord Warner, and I pay tribute to him. I saw him on a couple of occasions urging for a more mixed economy and the better delivery of services by utilising the resources of the private sector. I agree with him that we have to be very careful that the rights of an existing workforce to be transferred to another provider are carefully measured against the needs of the community that is being served. That must all be taken into account when the organisation taking on the service has to consider the implications of taking on that service, but also the Government have to consider how best they can ensure that the right service is carried on by the right people. My noble friend Lord Elton made a number of good points.
	Like the right reverend Prelate the Bishop of Winchester, I am troubled and concerned by a number of aspects in this group of amendments-trying to dictate people's religion, what religious organisations can ask of their employees, the whole issue of faith schools and everything else that has been brought into this debate, which has lasted almost an hour.
	We ought to return to the original purpose of the Bill, as the noble Baroness, Lady Whitaker, just said. What is the purpose of the Bill? When I was Secretary of State for Employment, I had the benefit of the noble Baroness as my director of the equalities office. I like to think that now and again, although perhaps not in public, she might acknowledge that I took careful note of a lot of guidance that I received from her, and I take careful note of some of the things that she said just now.
	I say to the noble Lord, Lord Lester of Herne Hill-and, in a way, to myself-that we are lawyers. I am one of the few people in the solicitors' profession who still has a practising certificate, and I have had for 41 years. In many ways, I suppose people would think that we wanted the law to be complicated, but we do not; we want it to be simple and understandable. It is far better for society that we achieve that, so we look to the Government to clarify this situation.

Baroness Thornton: My Lords, there are various matters in this debate that need to be answered and I will do my best to do so, while being mindful of the time. With the leave of the House, I will answer the questions turned about-that is, I shall refer first to the amendment of the noble and learned Lord, Lord Mackay, and then move on to the others, because that will work better.
	I say to the right reverend Prelate the Bishop of Winchester who, along with some other noble Lords, has suggested that there was little or no debate about Schedule 23 in Committee in another place, that that is not so. Similar amendments to both Amendments 125A and 125B were tabled and debated at some length.
	In answer to the noble Lord, Lord Hunt, the provisions in Schedule 9(3) and Schedule 23(2) replicate the effect of current provisions. I hope that that point will deal with most of these amendments.

Lord Hunt of Wirral: My Lords, the Minister carefully used the words "replicate the effect of". Does that means that she believes they express it in a better way, or is it a codification of existing law?

Baroness Thornton: I do not know the answer to that in detail because I have not made that comparison myself. As the noble Lord is aware, the Bill is largely about consolidating. I can certainly get him a detailed answer that will go through the two schedules and do that analysis for him, if he so wishes.

Lord Lester of Herne Hill: Would it be right to say that one of the main purposes of the Bill is to state the law accurately, so far as possible, and in a way that reflects European as well as domestic law so that it is more accessible and all in one place?

Baroness Thornton: The noble Lord is right; hopefully, it will mean that the law can be easily read.
	Amendment 125A would provide an exception for religious or belief organisations, or persons acting on their behalf, to impose restrictions because of sexual orientation on the provision of any services or functions being provided on behalf of a public authority. As noble Lords have rightly mentioned, we have a significant number of religious or belief organisations providing valuable services, often aimed at meeting particular requirements in some sectors of the community. I take issue with noble Lords who say that that is not the case and that the Government have not done a great deal to support those organisations in their work.
	Under existing law, these organisations have a limited number of exceptions enabling them to refuse to provide a service or a function to gay, lesbian or bisexual people. We believe that this exception is entirely appropriate but only where such restrictions are necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents.
	Where a relevant religious or belief organisation is delivering a public function, however, that exception does not apply. This is because, while the Government are sensitive to people's religious beliefs, in circumstances where public money is being used to fund a service we take the view that the service should be provided to people irrespective of their sexual orientation, and I hope that the right reverend Prelate would agree with that. That is also the view of the Joint Committee on Human Rights, which welcomes the re-enactment and clarification of the existing provisions in Schedule 23(2) that concern discrimination on the basis of sexual orientation. The committee considers that there is nothing in any human rights standard that requires an exception to be provided to permit religious organisations to discriminate because of sexual orientation when delivering services on behalf of a public authority.
	By contrast, the law enables the relevant religious or belief organisations to limit their service provision to people who have a particular faith or belief even where those services are being provided as part of a public service. This difference in treatment is for a valid reason. For example, a local authority that contracts out its provision of care for the elderly in an area with a large Jewish community may well choose to use the services of both a Jewish care home and a secular care home. We see that as entirely legitimate, provided that all those in need of care-I think the noble Lord, Lord Elton, made the point that we should address ourselves to those who need the care-are provided with it and to the same standard.
	The exceptions as they are drawn and already operating provide the correct balance between the rights of those of a given sexual orientation to receive public services and not to be discriminated against and the freedom of others to manifest their religion or belief. For example, it is entirely legitimate that a local authority should contract with a Muslim organisation to provide meals on wheels that are halal. We cannot envisage any circumstances in which a religious organisation providing a public service could legitimately be allowed to provide it only to those of a given sexual orientation. This exception is designed to ensure that vital activities of such religious or belief organisations are not unduly hindered. Many of these organisations are used by local authorities because they provide specific services of a nature that the local authority itself cannot, or they do it in a better and more cost-effective way.
	I turn to Amendments 101A and 101B. The amendments would mean that a religious organisation would be unable to require its employees to be of a particular religion or belief if they were acting as a public authority on behalf of, or under contract to, a public authority. Again, I make the point that religious organisations play an important role in bringing diversity to public life and the delivery of services that meet the needs of diverse communities. We recognise that such organisations need to be able to preserve their religious ethos. Schedule 9(3) allows them to have regard to their ethos when applying an occupational requirement for an employee to be of a particular religion or belief. Carefully targeted exceptions are an important means of allowing religious organisations to pursue their legitimate objectives.
	It is important to stress that we are not doing anything new in the Bill with regard to the exception. We are preserving an existing exception in the Employment Equality (Religion or Belief) Regulations 2003, which implement EU directive 2000/78/EC on establishing a framework for equality in employment. A number of people seem to think that this exception gives religious organisations carte blanche to require all employees to adhere to their particular faith. This is simply not the case. I hope that I will be able to address the issues that my noble friend Lord Warner has raised in the next set of remarks that I make. I will then amplify them by writing to the noble Lord.
	The principal function of a care home is the provision of care, not as a vehicle for a religious organisation to proselytise. That means that most of its employees are providing care. As I said, the exception requiring employees to be of a particular faith is not carte blanche for every employee to be required to be of a particular faith. On the contrary, it is very limited and will apply to only a very small number of posts. Its application will be subject to stringent tests. In practice, the further removed the function is from a place of worship-for example, the care home-the more difficult it is for those tests to be met.
	The EU directive specifically recognises religious employers as a special case. This is an entirely justified exception. It is right that it should apply to all relevant employees and workers, including those working under contract for public authorities. It is worth noting that the relevant article in the EU directive refers specifically to both private and public organisations whose ethos is based on religion or belief. There is no question of broadening the exception through the Bill. It remains a tightly drawn exception applying to very few types of employment. Its application will continue to be subject to strict tests.
	The employer must show that requiring an employee to be of a particular religion or belief is an occupational requirement and that the application of the requirement is a proportionate means of achieving a legitimate aim. Lastly, the employer must be able to show that it has an ethos based on religion or belief. Any organisation choosing to rely on exemption needs to be able to justify its decision before an employment tribunal if challenged.
	As we are not introducing anything new in the Bill, there is no question of legions of public workers suddenly having to reapply for their jobs the moment this part of the Bill is enacted. My noble friends asked legitimate questions. What would happen where public service workers are transferred to contracted religious organisations from a public authority? Could they be made redundant or dismissed should their new posts have a religious requirement attached to it that they cannot meet?
	First, the strict tests that I have described would have to be met for the given post to have the exception applied to it. In the case of a care worker, for example, it is unlikely that it could be argued that he or she must be of a particular religion or belief for the purposes of the job unless the nature of his or her job goes beyond simply the provision of care. In most cases it would be sufficient that the employee should have some understanding or respect of the faith in question.
	In addition to those tests for attaching a religious requirement to a given post, the Transfer of Undertakings (Protection of Employment) Regulations 2006 would need to be taken into account by the new employer in this situation. The TUPE regulations provide protection for employees from dismissal as a result of transfer. The employee would be treated as being unfairly dismissed unless the reason for the dismissal was economic, technical or organisational. It is difficult to see how a dismissal simply based on an employee's religious belief, or lack of it, could fall within the permitted reasons for dismissal under TUPE, as this is unlikely to constitute an organisational reason.
	As for the future prospects of public service workers who are transferred to a contacted religious organisation, in practice an occupational requirement that an employee be of a particular religion or belief applies to a very small number of cases. Again, the strict tests applying to the exception need to be met in every single case. Protection would be offered and would be discussed before that transfer of engagements was made.
	The Government's view is that this exception strikes the right balance between protection-I hope that my amplification of this will reassure my noble friend-and allowing employers with a religious ethos the flexibility that they need.
	I turn now to Amendments 101ZA and 101C-

Lord Patten: My Lords, before the noble Baroness leaves this important point, will she be kind enough to ensure that any letter that she writes on this point to the noble Lord, Lord Warner, is circulated to all noble Lords who spoke in this debate, because these are complicated and, I suspect, fiendishly difficult areas?

Baroness Thornton: My Lords, I give that undertaking willingly.
	Amendments 101ZA and 101C seek to tighten up the drafting of paragraph 3 of Schedule 9, which preserves an exception that is currently provided by Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003. It permits employers and other persons with a religious ethos to require those working for them to be of a particular faith, provided that there is an occupational requirement with a legitimate aim. This test has to be applied to each post for which the exception is considered. A requirement must, by definition, be crucial to the post and not merely one of several important factors. The facts in each case will show whether the requirement is genuine. Therefore, I do not agree that Amendment 101ZA is necessary, although I appreciate that the 2003 regulations contain the word "genuine". I have always wanted to say the word "otiose" in the Chamber, so I am very glad to echo the noble Lord, Lord Lester. We consider that the word "genuine" is unnecessary. My noble friend will know that we are trying to keep unnecessary words out of this Bill to keep the Bill's English simple and plain.
	I turn to Amendment 101C. I hope that I can assure my noble friend that the exception in paragraph 3 is intended to apply only to the protected characteristics of religion or belief as permitted by the EU framework directive on employment and occupational discrimination. The exception allows the application of a requirement to be of a particular religion or belief and thus could not apply to any other protected characteristics. With those reassurances, I hope that noble Lords will withdraw their amendments.

Lord Mackay of Clashfern: My Lords, the amendment that requires to be withdrawn is the one put forward by the noble Baroness, Lady Turner. Before she says what she wants to do about it, could I be sure that I have understood the Minister correctly? With respect to my Amendment 125A, does "sexual orientation" in the Bill mean sexual orientation or does it extend to sexual practice?

Baroness Thornton: My Lords, it says "sexual orientation", so that is what it means.

Lord Lester of Herne Hill: My Lords, I am completely satisfied and would not dream of moving either of my amendments. However, I am not at all satisfied by the notion that sexual orientation does not include sexual practice, as it plainly does.

Baroness Thornton: My Lords, it does. I am sorry. I misunderstood the question and gave the wrong answer.

Baroness Turner of Camden: My Lords, I thank my noble friend for that very detailed response. I also thank noble Lords who have contributed to a very interesting and rather wide-ranging debate-much wider-ranging than I anticipated when the amendment was drafted. In particular, I thank the noble Lord, Lord Warner, because he spoke from a great deal of experience and gave what I thought was an unanswerable case that, when you have a transfer of employees from one employment to another, any union will do its best to ensure that the transfer that takes place does not mean a worsening of employment conditions for those employees. As far as this amendment was concerned, the idea was to ensure that people did not face demands in relation to their employment when a transfer was taking place that they had not had to face when they first took employment with a public service.
	The right reverend Prelate contributed substantially to this debate, as he has on previous occasions. What does he think would be the case for an individual who is being transferred from one employment to another and, when he or she turns to that employment with a religious ethos, suddenly has to face a change in conditions that he or she had not anticipated when he or she first took that employment? If he or she had to face a situation in which sexual orientation was part of the requirement, or requirements in relation to sexual orientation were something that had to be considered that he or she had not had to consider at all in first taking the employment, it would be quite unacceptable. My noble friend made it clear that that was not the Government's intention.
	We have had a substantial number of assurances from the Government, which I should like time to consider, because this is a very complicated matter. I accept that in certain respects what has been suggested was not really required, because it is covered. I accept what was said in relation to Amendment 101ZA-namely, that it is not necessary to insert "genuine" before "occupational requirement". That point was made by the noble Lord, Lord Lester, and I accept it completely. I thank him for that and for his detailed contribution on this rather complicated question. In the mean time, I beg leave to withdraw the amendment.
	Amendment 101ZA withdrawn
	Amendments 101A to 101C not moved.
	House resumed. Committee to begin again not before 9 pm.

Flood Risk Regulations 2009

Copy of the Order
	2nd Report from the Merits Committee

Motion to Resolve

Moved By Lord Taylor of Holbeach
	To move to resolve that this House calls on Her Majesty's Government to revoke the Flood Risk Regulations 2009 laid before the House on 19 November 2009 (SI 2009/3042).
	Relevant document: 2nd Report from the Merits Committee.

Lord Taylor of Holbeach: My Lords, I begin by declaring my interests as a farmer and grower and as a member of a number of organisations with an agricultural background. I am also a vice-president of the Association of Drainage Authorities. Although the latter may be a particular focus of interest, it should not lead noble Lords to assume that I possess a great depth of knowledge of the subject, although it might account for my interest in raising this matter for debate.
	The Minister introduced these regulations in a Written Statement on the very day of the Cumbrian floods. Since then, the House's Merits Committee has drawn our attention to aspects that it considers are particular causes of concern. The LGA has written about the funding of local authorities' role vis-à-vis these regulations. For this reason, I seek to move the Motion in my name before the House this evening.
	As I said, these regulations were laid before Parliament on the very occasion of the Cumbrian floods. By further chance, last Friday I had the opportunity to visit Cockermouth and Carlisle on a fact-finding visit, which greatly added to my knowledge of the disaster and its aftermath. I acknowledge the kindness of all the people whom I met and talked to, particularly Messrs Robert Jackson, senior and junior, who farm just outside Cockermouth. To stand on their riverside fields, still strewn with debris and kelter from Cockermouth, just half a mile upstream, was an awe-inspiring experience but also a worrying one. Hay bales and uprooted trees one might have expected to see 10 weeks later, but to see wheelie bins by the dozen, furniture, fridges and other electrical goods scattered across the fields was, to my mind, alarming. More dramatic than that were the acres of meadowland and a drilled field of autumn barley strewn with boulders, some as big as footballs, laid out as if on a beach, and in some cases feet deep. It is hard to see how this grade one land is to be reinstated. It seems to me to be as lost as the 40 metres of the same barley field lost to the river. It caused me particular concern that, although the Rural Development Fund money, up to £6,800, might well be adequate for the costs that some farmers face in clearing up, it was totally inadequate for the task facing Mr Jackson and the dozen or so farmers similarly affected.
	There was also a confusing lack of direction from the Environment Agency and Natural England about their role. Indeed, I received mixed messages both on the clear-up and future strategy for the Derwent river basin. It was not satisfactory to stand half a mile from a town struggling to re-establish normal life and be given the impression that the Environment Agency had no funds for managing the accumulation of gravel in the river or for river margin protection. It was perhaps even more worrying to find Natural England worried about SSSIs, biodiversity and the habitat of crayfish. That indicated to me that a stronger sense of direction was needed. I am tempted to coin a phrase and say, "We can't go on like this". I am pleased to say that the leader of the county council, Mr Jim Buchanan, has agreed that it must be a priority to assist in moving litter from sites such as Mr Jackson's farm. The commission of temporary waste dumps and the waiving of regulations governing movement of waste are fine, but that was of little or no assistance to Mr Jackson given the scale of his task in moving the debris off his land.
	It is not all negative. The Carlisle flood abatement scheme was recently completed and 600 homes that might otherwise have been flooded remain dry. On being shown the scheme, I observed that it had brought a pleasant cycle path and footpath along the newly flood-walled and protected River Caldew flowing through the town. However, this green vein, attractive though it is, has a downside in that this river, although canalised, is choked with rubble, mud and self-sewn willows and buddleia in the interests of providing natural habitats. I doubt the wisdom of a river management system that allows such a feature in an urban area. It cannot help water movement and we know that fallen trees and debris caused a great deal of havoc in Cockermouth.
	I may have travelled a little from my Motion, but we should consider the application of these regulations. We could, I suppose, consider that these regulations are part of the Government's legislative response to the Pitt report and the summer floods of 2007, but that is not strictly the case. We would, however, be right to consider them as ancillary to the Flood and Water Management Bill, which is at present in another place and which we can confidently expect will arrive in your Lordships' House before too long. Indeed, my first question to the Minister is whether it is right to bring forward a statutory instrument that uses a concept of lead local flood authority and lays out duties for that body before primary legislation has set up the concept. The Flood and Water Management Bill defines "lead local flood authority" in Clause 6(7) on page 4, and defines "risk management authority" in Clause 6(13), also on page 4, as the lead local flood authority. Clause 7 states:
	"The Environment Agency must develop, maintain, apply and monitor a strategy".
	Under Clause 7(2)(a), the strategy must specify,
	"the English risk management authorities".
	All that is in the forthcoming Bill. We know that the EU floods directive 2007/60/EC covers the assessment and management of flood risks. The implications of its provisions are the subject of this statutory instrument. Earlier water environment regulations charged the Environment Agency with providing a management plan for each river basin district.
	The new regulations before us introduce the concept of lead authorities and seek to reciprocate their activities, with flood risk assessments, maps and management plans already being undertaken by the Environment Agency. Defra believes that this will not impose an additional burden on the local authorities concerned. That is hard to believe but, as Defra has committed to funding any new burdens for local authorities as a result of these regulations, can local authorities be reassured that their responsibility in this area will be fully funded? I suspect that the LGA's concern is that it all depends on what is meant by "new burdens".
	My concern extends beyond the financial to the engineering skills available in-house. There could be considerable costs in employment of consultants, or is the Environment Agency instructed to work alongside local authorities in the work involved? The engineering of water management is a particular branch of the engineering profession. It is there that my particular interest as a fenman and as vice-president of the Association of Drainage Authorities comes into play. It must be suggested that had an IDB or river authority been in place on the Derwent or the Cocker, the impacts of the floods may have been lessened, as the management of the river and its ecology would have benefited from such engineering skills. The regulations before us list IDBs in part 6 as authorities from which the Environment Agency and local authority require information, but that is all. They have no statutory consultation role, unless invited, as far as I can see. I might add that neither do the police or the emergency services, but their knowledge would be invaluable in areas that have experienced floods. This is surely an oversight. It is important that such assessments are properly constructed on sound analysis of the evidence, which requires a professional input. It is obvious that there are implications for property values, both private and commercial, in their publication.
	I turn to the semantics of hazard and risk. Under Regulations 18 and 19, the Environment Agency and the lead local authorities are required to produce both hazard maps and risk maps. "Risk" is defined under Regulation 3, but of "hazard" there is no sign. Both the Concise Oxford and Chambers dictionaries that I have consulted define "risk" as "hazard" and "hazard" as "risk". Would it not help if the meaning were determined and described so that they were clear and so that the functions of each of these pairs of maps or plans were obvious to us all?
	Finally, while I do not doubt that these desk exercises can be used to good effect, they are no substitute for on-the-ground management by individuals dedicated to the proper management of water, the sound engineering of our rivers and the safety of people and property. I beg to move.

The Earl of Selborne: We are all grateful to my noble friend Lord Taylor for giving us an opportunity to consider the Flood Risk Regulations, although a debate before 10 December 2009 would have been more timely, for they have now been transposed into domestic legislation. Normally, I am supportive of EC measures which seek to promote consistent environmental regulation throughout member states. In this case, I fear we have missed an opportunity to scrutinise the EC floods directive and its transposition into domestic law through a vehicle which would have been much better designed than these regulations, that is the Flood and Water Management Bill which is at present going through Parliament.
	The EC directive has the worthy aim, among others, of establishing effective cross-border flood risk management. This is one issue that simply does not arise, as the regulations we are considering apply only to England and Wales-they do not relate to Northern Ireland. What we need is bespoke consideration. As my noble friend just explained, some of the very clear national issues that we have are about flood management appraisal and putting into effect the right proposals.
	A proper parliamentary scrutiny of the transposition of this directive in the Flood and Water Management Bill would have been an ideal way to set about it. I am sure Parliament would have made a helpful contribution as to how the regulations could have been fine tuned, as appropriate for our national needs. However, Parliament has effectively been deprived of the opportunity. We have had no opportunity to look at the fine detail, as we would if we had been in Committee on a Bill. The irony is that most of us support the thrust of the directive and see the need-not perhaps for cross-border flood risk management for England and Wales-but certainly for detailed appraisal and management proposals to be prepared, particularly in areas of priority.
	The Minister may point out in replying that, as part of the public consultation on the draft Bill, one chapter addressed the issue of the transposition of the floods directive. The Explanatory Memorandum to these regulations reports that 48 per cent of respondents were broadly in favour of the proposed transposition arrangements, 46 per cent made general comments and 5 per cent were against the proposals. The conclusion that I draw from these figures is that the large majority are, like me, in favour of the general thrust of these regulations, but there is plenty of scope for improvement. Forty-six per cent of people would not have made comments if they did not have ideas as to how the arrangements could be improved.
	As my noble friend Lord Taylor just remarked, there are very specific issues on flood management which are all too apparent and need to be addressed. The way the EC floods directive has been transposed into UK law is a missed opportunity. Frankly, Parliament has been treated poorly. I know that the original intention was for the Government to use the Bill to transpose the legislation-they were worried about the cost of infraction proceedings. What has happened is that, for pure convenience in administrative matters, Parliament has been sidetracked. That is a great pity.

Baroness Byford: My Lords, I would like to follow my noble friend Lord Selborne, because he touched on a couple of things which are extremely worrying. I take his point that many of those who responded had queries. I have looked at the observations of the Merits of Statutory Instruments Committee on the Bill. My noble friend Lord Taylor of Holbeach stated in his introduction that he was quite concerned about the extra resources needed. In fact, the Merits Committee points out in paragraph 19 that,
	"a significant number of respondees called for sufficient funds and resources,"
	to be available to,
	"local authorities to undertake their responsibilities,"
	under this directive. Can the Minister say how many people asked and how many was a significant number? How confident are the Government that they-Defra particularly-will have sufficient funds and resources, in terms both of money and of manpower and skills? All of us are well aware of the dire straits in which the Government find themselves within departments, and Defra is one of those departments that is looking to find cuts in commitments. How confident can the Minister be, if local authorities realise that it will cost them more than was originally understood, and if the Merits Committee are right in saying that the lead role has been underestimated by Defra, that that will be resolved? There is no sense in us today passing measures under which we have no guarantee that those costs will be met.
	I go back to the point made by my noble friend that this discussion should have taken place within our debates on the Flood and Water Management Bill. My noble friend is slightly more gentlemanly than me in his approach, but having been Front-Bench spokesman for 10 years on this brief, it irritates me beyond words that we are asked to accept legislation on this issue in the form of statutory instruments. As we know well, we can debate it tonight and we can raise issues with the Minister, but it will not change anything because we cannot change the regulations. Whereas, if proposals were in primary legislation-a Bill-one would have a chance to alter and improve it. I, and I think all of us, support many of the things that this statutory instrument is trying to do.
	I have some basic questions on costs and skills, bearing in mind the cost-cutting that will come to Defra and, indeed, local authorities. I return to the very good example raised by my noble friend. We are grateful that he went to Cockermouth and talked to some of the farmers up there. The regulation refers to those with economic interests and the environment. I hope that farming is considered to be an economic business, because if it is not, it jolly well should be, because farming is a business. My noble friend raised the problem of the enormous costs that a particular farmer will incur that will not apply to other farmers in relation to some floods. How do the Government intend to support the local authority to help that farmer to cover those extra costs?
	I wish to raise two other issues. One is about the maps that will be created. My reading of the statutory instrument is that they will be available to members of the public. Will they be able to obtain them online? Will there be a cost? How will that work? My final point is that obviously some areas and counties do not have the same risk-management problems as those experienced by other counties on a regular basis. Are they expected to produce reports and plans as full as those required to be produced by an authority with constant risk-management problems? Those are specific issues, but I am anxious because this statutory instrument has raised real issues that need addressing. Our only chance to do so is through the statutory instrument, and I am grateful to my noble friend for raising this matter.

Lord Teverson: My Lords, I should declare an interest as a member of a unitary authority, Cornwall Council, which will be one of the authorities which has to implement these regulations, which have already been passed.
	I was interested in the comments around subsidiarity raised by the noble Earl, Lord Selborne. I, too, read these regulations and two issues sprang out at me. One was whether the directive, if we or the European Union Committee looked at it, would pass the subsidiarity test. Within continental Europe, given the large river basins, including the Rhine and the Danube, cross-border planning is important, and more than two member states are often involved. However, these regulations apply only to England and Wales, and a small part of Scotland, but do not apply to the Northern Ireland/Republic of Ireland border. I wonder whether these regulations are essential to us as a member state in terms of European legislation.
	Exactly as the noble Lord, Lord Taylor, said, having looked at a number of these issues that are largely already covered in UK legislation-perhaps not sufficiently-I should be interested to understand from the Government which parts of the directive are not covered sufficiently. They may be perfectly good in relation to what the Government want, but there is insufficient explanation as to which parts of the directive are not covered by existing EU legislation and, therefore, why such an order is necessary. If the Government wish to improve the current legislation, as many of us would wish to, it would be much better-as has already been stated-for that to be included in the Flood and Water Management Bill. I should be particularly interested to understand why the current spatial planning flood-risk assessments do not cover what the directive already requires and why we therefore need, in terms of implementation of European legislation, flood-risk management plans.
	Like many other Members of this House, I am also concerned at the cost of this. The £6 million one-off cost may be credible, but the ongoing zero cost is very optimistic. All local authorities are under financial pressure and will continue to be so. They are putting their budgets together at this very moment; although this is of great importance, it will be an additional pressure on local funding which regrettably will have an effect on other services as well.
	I could not see anywhere within these regulations, which are now already within the law of the land, when these plans by local authorities have to be submitted. I did not see any timescales and I would be interested to hear those.
	This is an important debate and I do not wish to prolong it any further. My only comment is that in my experience of Parliament whenever a Member stands up and says, "My Lords" or "Fellow Members, I will be brief", they are always the longest speaker. It is also the case that when Members stand up and say they know nothing about the subject or are very modest about what they know, they come forward with extremely important, in-depth and relevant speeches. We certainly heard such a speech from the noble Lord, Lord Taylor, this evening.

Earl Cathcart: My Lords, I understand that these regulations were previously intended to be part of the draft Flood and Water Management Bill, but the Government decided to push them separately without debating them in either House, as has been said. I thoroughly agree with my noble friends Lord Selborne and Lady Byford that it would have been much better to have debated them before December.
	My noble friend Lord Taylor has asked why it is right to bring forward these regulations before primary legislation. I agree: it is like putting the cart before the horse. It is very unusual to have secondary legislation coming before primary legislation. One can only assume that the Minister does not expect the flood Bill to make it through all the stages of the parliamentary process to become law. On this side of the House, we have said that we will support the Bill, so what are the Government not telling us? In their endeavours to comply with EU legislation, the Government have brought forward these regulations regardless of whether the flood Bill becomes law or not.
	I want to move on, as others have done, to the cost of implementing these regulations. I understand that Defra's impact assessment suggested a one-off cost of £6.66 million. The Minister is no doubt already aware that the Local Government Association believes that the Government have underestimated this, and that the cost will overrun. Can the Minister confirm, as others have asked, that Defra will not only fully fund this cost, but also that of any overrun?
	My last point concerns Regulation 7, "Lead local flood authority", and it was raised by my honourable friend Anne McIntosh in another place in Committee on the Flood and Water Management Bill. Regulation 7 states that the lead authority should be the county council, where there is no unitary authority for an area. Obviously, the county council should be the lead authority in many instances-for example for sustainable drainage along the highway-but what about when a planning application is being considered? The district council is clearly the planning authority, so it seems obvious that it should deal with the Sustainable Urban Drainage System, or SUDS. However, under Regulation 7, the county is the lead authority in this area, whereas the district, as I have said, is the most appropriate authority to deal with SUDS. Does the Minister propose to give guidance to councils suggesting with which level of local authority the lead should lie? Otherwise, as things stand, the planning process will be unnecessarily prolonged; I know we are all keen to speed up this process.
	It might not seem obvious that SUDS is relevant to these regulations, which deal with flood risk management, maps and plans, but it is. These regulations are now law. They define who is to be the lead authority and so have a direct link with and bearing on the flood Bill.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have participated in the debate. By their very participation, they have answered the charge that there is very little opportunity to discuss the issues. I hasten to add that it is also the case that we are confident that the Flood and Water Management Bill will be before the House immediately after the Recess. There will be a number of weeks before there is any question of Parliament being dissolved. Consequently, we look forward to constructive debate on the issues during that time, within the framework of the Bill. Far from the Government having denied any opportunity, they have provided a dual opportunity: the opportunity for debate on the regulations, and the opportunity for subsequent debate on the Bill. I am grateful that noble Lords have indicated that there is merit in both, and that there is not much that we will want to see translated into law.
	I will add that if noble Lords are critical of the opportunities for discussion of the regulations in the other place, the fault lies with those who had the opportunity of asking for that debate. Here, the noble Lord from the opposition Front Bench asked for this debate and duly got it. The fact that his colleagues in another place did not ask for a debate is not the Government's responsibility: it rests firmly with those who chose priorities other than this important one. I am glad that the noble Lord chose this important one, and that we have the chance to debate the issues. As I indicated, we will be able to do even more when the Bill is before us.
	I emphasise the links between the two. The noble Earl, Lord Selborne, is absolutely right to say that the Government were probably worried about the issue of infraction if they delayed too long their response to the directive: that is why they introduced the regulations in November. We were then able to take into account what the regulations covered when it came to the drafting and presentation of the Bill. We have the advantages of both being contributory to dealing with what we all recognise is a matter of great importance and some urgency, given what that the noble Lord, Lord Taylor, and others who have spoken, identified as the risk of flooding and the horrors that were visited on Cumbria in the latter part of last year.
	The Government are not apologetic about the situation: far from it. This is largely because the directive substantially followed the pressure that they were applying to the European Community to secure the directive that they wanted. We find it relatively straightforward-although there are always problems-to follow the principles of the directive and bring them within the framework of our regulations because they are largely consistent with how we want to act.
	We are also conscious of the fact that the European dimension on this is important. There is no doubt about the flood risk in Europe. The noble Lord, Lord Lawson, is in his place, so I will not provoke him by any reference to climate change; but the noble Lord, while disavowing any such concept, will recognise that parts of Europe have been subject to more extensive and dramatic flooding than has been the case in the recent past. Therefore it is right that the Government address the issues. After all, we experienced floods in 2005 and 2009 that produced devastating effects on localised communities, and so have reason to act.
	I repudiate the idea that the Government have not been keen for scrutiny: quite the opposite. We will provide opportunities for that, and will be constructive about the legislation. I have no doubt that the contributions made here today will be constructive, because no noble Lord has addressed the regulations-or, in passing, the Bill-without offering the view that they are necessary and that we need legislation that is effective and deals with the problems that we all appreciate.
	The noble Lord, Lord Taylor, rightly identified one crucial issue. He was by no means the only one because the noble Baroness, Lady Byford, and the noble Earl, Lord Cathcart, also raised this point. I recognise that there are obligations on the local authorities, but we have made it clear, and the local authorities have in their representations accepted that point, that resources will be available for this. We have indicated that if there are additional costs above and beyond the provisions that we have made this is part of the negotiations that we had in the preparation of the legislation. We have been concerned to increase the level of public involvement. Obviously local authorities have been involved with costs and I assure the House that Defra recognises its responsibility as regards costs, and the responsibility will remain with Defra.
	We have said that if it becomes clear that local authorities have incurred additional costs in fulfilling their responsibilities under the directive, Defra will provide the extra funds in full.

Lord Campbell-Savours: My Lords, will my noble friend give way? Is any information being made available on who is going to get this money? Many local authorities will have a minimal case to make in terms of flood risk. Has any work been done on the profile of expenditure and who is getting it?

Lord Davies of Oldham: My Lords, of course it will be the local authorities which are involved in the risk management exercise and for which the risk with regard to floods is important. The noble Lord, Lord Taylor, spoke of his visits to Cumbria. He will recognise that my noble friend Lord Campbell-Savours lives there and represented part of the area in the other place for a considerable time. I want to assure him that there are different funds available with regard to clean-up and clear-up after the devastation. I applaud what the noble Lord, Lord Taylor, said about the necessity of recognising-the noble Baroness, Lady Byford, also emphasised this point-the catastrophic impact upon some farmers from the floods. We are going to give help with regard to that. We have clearly signalled it and the issue of clear-up is enormous. The noble Lord, Lord Taylor, identified in his graphic description what a formidable challenge that is for land that has been devastated in this way.
	The Government of course have indicated that they will address the consequences of the floods for Cumbria. It will not be overnight and not by the stroke of a pen-everybody recognises the difficulties. As regards farmland, of course, time is also key because there is no way in which clear-up of that kind of devastation can be effected in a short period of time. But that is separate from the resources that I was indicating related to the directive and the implications and the work that derive from it.
	In these terms, the Government maintain that we have consulted on the directive, we have consulted certainly on the Bill; noble Lords have indicated in their speeches the responses that we have had on these issues. We know the degree of public anxiety. I want to assure the noble Baroness, who raised the next stage of public consultation, that the maps will go on line. There is every intention of seeking to involve the public with regard to the presentation of the maps and the proposals in these terms. Consequently, I hope it will be appreciated that the Government intend to act in as open a manner as possible, knowing full well that local areas are extremely important sources of information on risk assessment as regards flooding. It is important that we tap into that.
	I hope noble Lords will also appreciate the drafting of the regulations and especially the drafting of the Bill. I know that the Bill is not immediately before this House but it has had very extensive consideration in the other place with which noble Lords will be acquainted. Those deliberations indicate the openness of the legislation, the necessity for consultation and, above all, the necessity of effective co-ordination with localities on the implementation of the legislation. In that respect, I hope I can reassure noble Lords.
	This is our only debate on these regulations-it is customary to have only a one-hour debate on regulations. However, we also have the Bill. The advantage with the proper response to the European directive and the regulations is that we were given an early start in November and a chance to put the regulations alongside the Bill. We are conscious of the constraints of time and everyone knows that we do not have a full parliamentary Session before us. The Bill was introduced into the other place at an early stage and it will come to us a week after the Recess. Therefore, we have a framework for a full debate on it.
	I want to assure noble Lords about the opportunities for getting this legislation right and seeing that the regulations complement the Bill. I heard the criticism that the regulations offer less debate. Of course they do, but they also supplement the Bill and enable us to cover a range of areas which otherwise might led to a very protracted debate on the Bill with the danger that it might not be delivered in the time allotted. There is a logic to that position.
	Therefore, the Government are in no way apologetic about the way in which they have approached these issues. First, although we are as one with everyone who has spoken this evening on the importance of action in this area, we must have a clear definition of why we need legislation. Secondly, I want to reassure the House on the issue of costs. We are addressing the costs and we appreciate above all that effective consultation at a local level is the only way in which these issues will be conducted satisfactorily.
	I realise that I have not answered every single point in what has been a fairly wide-ranging debate, but I hope I have succeeded in indicating to the House that far from these issues not being subject to open and full consultation and then debate, this House will soon enjoy the opportunities which the other place has had to debate the Bill. Therefore, where there are weaknesses with regard to the regulations-I am the first to recognise that any form of regulation, given the extensiveness of this issue, is bound to be limited in its impact-and we will be able to address them when we consider the Bill.

Baroness Byford: My Lords, by his last comment, is the Minister indicating something that does not normally happen: that if for any reason this House decides that changes need to be made to the statutory instrument that may happen? Normally, that never happens.

Lord Davies of Oldham: No, my Lords, I was not indicating that. The noble Baroness will be well aware of the fact that we cannot amend a statutory instrument that will be part of the regulation that has been passed by Parliament if in fact it goes through this stage this evening. What I was indicating is that we will be able to look at what is then in law as far as the regulations are concerned and consider the Bill against that background. I am indicating that, of course, the regulations make their contribution to addressing this issue.
	The Bill is far more important and much more wide-ranging, as would be expected, and I was indicating to the noble Baroness that the Bill should be seen in that context. If from that we had a position in which the regulations needed to be advanced further, we could then subsequently address that, but we are dealing this evening with regulations which will go through as they stand. Of course, it may be from the Bill that there is a necessity identified of secondary legislation and, of course, the Government will be prepared to look at that.

Lord Teverson: My Lords, I do not think that the Minister has answered any of my questions. While some of them may be too difficult within such a short debate, perhaps he could just tell me when these flood-risk management plans need to be completed and ready, since, as I said, I do not see that anywhere.

Lord Davies of Oldham: My Lords, we have to deliver this by 2011: that is the deadline that we are working to and that is why the deadline for the introduction of the legislation was in November last year. We did not quite hit that deadline, but we were within two weeks of doing so, in terms of the European directive. I think that all noble Lords who have spoken in this debate will be concerned not just with deadlines which are derivative from a European directive. We are all conscious of our fellow citizens and their industries-of which farming is an important one, as has been identified this evening-who have suffered from the flooding problems in very graphic ways and we need to address ourselves to those issues.

Lord Taylor of Holbeach: My Lords, I thank the Minister for responding to this short debate. My noble friend Lady Byford got to the nub of the issue in her challenge to the Minister-there is no doubt that the passage of this statutory instrument does indeed, to some degree prejudice our capacity to debate the Flood and Water Management Bill. However, that is not an unusual situation.
	I thank all noble Lords who have spoken in this debate for their general support for what we have sought to do this evening. Generally approving the Government's purpose in introducing the Flood and Water Management Bill also exposes our responsibility as Members of this House to debate the Bill and to ensure that it achieves the Government's objectives and the objectives that are shared by other Members of this House, so I hope the Minister will not assume that that debate will be all sweetness and light. At least the debate this evening has shown that the detail of the Bill will be very properly debated on its arrival here.
	As for the regulations, I am grateful for the Minister's assurances to the noble Lord, Lord Campbell-Savours, first, that local authorities' expenditure will be fully funded by Defra-I believe that that is what the Minister said-and, secondly, that funds will be made available beyond what has already been committed to deal with the extraordinary circumstances in which certain businesses and individuals find themselves as a result of the Cumbrian flood damage.
	Given the nature of these things, I am sure the House will wish me to withdraw the Motion.
	Motion withdrawn.
	Sitting suspended.

Equality Bill
	 — 
	Committee (4th Day) (continued)

Amendment 101D
	 Moved by Lord Low of Dalston
	101D: Schedule 9, page 165, line 39, at end insert-
	"( ) a requirement not to be a disabled person"

Lord Low of Dalston: My Lords, in moving Amendment 101D, I shall speak also to Amendments 101E and 101F, which all amend paragraph 4 of Schedule 9. Their effect would be to remove the blanket exemption of service in the Armed Forces from the employment provisions of disability discrimination legislation. But it is important to be clear just what the amendments do and do not do. They amend paragraph 4(3) of the schedule so that it no longer disapplies Part 5-that relating to work-from service or work experience in the Armed Forces as regards disability. However, Amendment 101D adds,
	"a requirement not to be a disabled person",
	to the requirements which may be applied to service in the Armed Forces if they can be shown to be a proportionate means of ensuring combat effectiveness.
	The exemption I seek to modify was in the Disability Discrimination Act when it was enacted in 1995, along with similar exemptions in respect of service in the police, prison and fire services. In 2004, the police, prison and fire services were brought within the scope of the DDA by the regulations implementing the European directive on equal treatment in employment and occupation. But an exemption from that directive was negotiated in respect of service in the Armed Forces. That exemption is retained in the Bill and also formed the subject of a reservation to the UN Convention on the Rights of Persons with Disabilities when it was ratified last June.
	At first sight, trying to lift the taint of discrimination from the ban on disabled people serving in the Armed Forces seems like political correctness gone mad. What disabled person would want to make a point of serving in the Armed Forces if they did not have to? Of all the bastions of exclusion that one would most like to storm, the armed services would probably not rank high on anyone's list. Surely it could have the effect only of undermining fighting capability. Disabled people need to recognise their limitations and be realistic about how far they take the principle of inclusion.
	Why, then, do disabled people care about this? The answer is that excluding any occupation lock, stock and barrel sends a very negative signal about disability and undermines the principle of full inclusion and citizenship for disabled people. Is it even necessary? What about all the civilian jobs that do not require combat effectiveness, including cooks, radio operators, quartermasters and the like? But a principle is not worth having if it flies in the face of all practicality. Therefore questions of practicality inevitably come into it. In the fighting services of today, it is said, sharp demarcation of roles no longer exists. You can be cooking one minute and fighting on the front line the next, or if not actually fighting on the front line, then fleeing for your life, which requires you to maintain a pitch of fitness which is out of the question for disabled people. This begins to make the argument based on the wide diversity of jobs available in the forces difficult to sustain.
	But there may be more to this than meets the eye. The argument that bans all disabled people from serving in the Armed Forces on the basis that people in wheelchairs or people who are totally blind could not possibly go into action is based on a very narrow and outdated stereotype of what disability is and certainly not one that is recognised by the DDA. There disability includes things like severe disfigurement, diabetes, controlled epilepsy, having had a mental illness at some time in the past, and many more conditions, none of which would necessarily disable a person from active service in the Armed Forces.
	What is to prevent such a person being fully combat-effective? This is the crux of the argument for sticking up for disabled people's right not to be excluded automatically from serving in the Armed Forces. It is not about the diversity of jobs but the diversity of disabilities. The matter was considered in 1999 by the Disability Rights Task Force, of which both the noble Baroness, Lady Campbell, and I were members, along with the question of service in the police, prison and fire services.
	The MoD was understandably concerned about operational effectiveness. It argued that disability, or a history of disability, was not compatible with the need for a combat-effective fighting force able to undertake military operations anywhere in the world at any time. The task force recognised the special nature of the Armed Forces and the significant efforts they make to retain personnel who become medically unfit. However, it did not consider there was a case for a major public sector employer to be exempt from the provisions of the Disability Discrimination Act or that disabled people in the Armed Forces should be denied protection against unfair discrimination in employment. It noted that, under the DDA, employers are not required to do anything that is unreasonable and, for example, employ or retain someone who cannot do a particular job after any reasonable adjustments have been made. This acknowledged the concerns of the defence chiefs about being sued by disabled people claiming to do things which they plainly could not do. The task force therefore recommended that the employment provisions of the DDA should cover the Armed Forces as well as the police, prison and fire services. But, in the case of the Armed Forces, it recognised that adequate safeguards needed to be put in place to ensure that operational effectiveness was not compromised.
	That is what my amendments do. They would relax the total exemption of service in the Armed Forces but add the requirement not to be a disabled person to the requirements which may be applied to service in the Armed Forces if they can be shown to be a proportionate means of ensuring combat effectiveness. In this way, disability is placed on the same footing as the requirement to be a man or not to be a transsexual person, and the safeguards called for by the task force in the interests of combat effectiveness are guaranteed.
	The matter was considered again last April by the Joint Committee on Human Rights in the context of reservations to the UN Convention on the Rights of Persons with Disabilities. It said that it had seen no evidence to support the Government's position but that the exemption was justified and appropriate. It noted the conclusion of the EHRC that lifting the exemption which had previously applied to the police and fire services, which both place similar demands on their personnel, had had no negative impact upon the ability of both services to determine objectively who joins the service or upon operational effectiveness and that so far no other EU party to the convention has felt the need for such a reservation.
	Given the breadth of the proposed reservation, the committee considered that it is open to challenge as being incompatible with the object and purpose of the convention, which the UK has ratified, and reiterated its recommendation that this should be reconsidered in the context of the Equality Bill. If the Government decide to lodge a reservation in the terms proposed or any alternative based on the principle of combat effectiveness, we recommend that they should commit to keep the reservation under review and undertake to reconsider the necessity for it within six months of Royal Assent.
	It is very disappointing, therefore, that the Government have not seen fit to reconsider the matter in the context of the Equality Bill. What we are speaking of here is a right not to be automatically excluded from service in the Armed Forces, not an automatic right to do so. No one is saying that any disabled person can perform any role in the services. In the words of the noble Lord, Lord Lester of Herne Hill, speaking in the debate held in Grand Committee on the ratification of the UN convention:
	"Recruitment should be based on assessments of individual merits, rather than on the basis of stereotype or prejudice".-[Official Report, 28/4/09; col. GC26.]
	All that disabled people want is the right not to be subjected to a blanket ban which states that the one thing a disabled person cannot be allowed to do is serve in the Armed Forces of his country. I beg to move.

Baroness Wilkins: My Lords, I strongly support Amendment 101D moved by the noble Lord, Lord Low, which seeks to remove the Armed Forces exclusion from the provisions of the Disability Discrimination Act. The noble Baroness, Lady Campbell, also very much wanted to support this amendment. As the noble Lord has said, the matter was strongly pressed when she was a member of the Disability Rights Task Force, but unfortunately, although she would have liked to be here, the hour has grown too late.
	The military has a narrow view of what constitutes disability. Perhaps I may expand on that. The military believes that all forces personnel must be fit to be deployed instantly to any part of the world and to be fully operational in whatever circumstances they happen to find themselves. Some people believe that inclusion in the DDA would mean that the military would have to consider blind soldiers, submariners in wheelchairs and so on. They have not grasped the concept of genuine occupational requirements. It is perfectly reasonable for the military to impose a fitness standard for new recruits and, providing that the standard can be justified, people who do not meet it could be rejected. The DDA permits this. However, the military has a blanket ban on disabled people.
	Everyone should be considered on their merits. It is worth noting that when Sir Bert Massie was chair of the Disability Rights Commission and spoke to military commanders, they were shocked to learn that facial disfigurement counted as a disability. Ironically, the many soldiers who have been burnt in the course of their duty would be protected if the military were subject to the DDA. When the Act was first passed, the uniformed police and the fire service were also excluded. They used the same defence that is now used by the Armed Forces. From 1 October 2004, the exemptions for the police and the fire service were abolished, and it is interesting to note that the performance of both has continued to improve.
	A recent report in the press showed that the Armed Forces were doing a great deal to retain soldiers who have been injured in Afghanistan. To a large extent, the military is already beginning to implement some of the principles of the DDA, and surely the exclusion of the military from the Act makes less and less sense as the years pass. I suspect that part of the anxiety within the military is the fear of appearing in civilian courts because of the belief that civilians cannot possibly understand the rigours of military life. This is the same belief that was applied to gender and race, but the military is now subject to the law regarding both; disability is still the exception. I urge noble Lords to think again about this exclusion anomaly and to support the amendment.

Lord Craig of Radley: I would like to start by recognising the determination and commitment to this theme of the noble Lord, Lord Low, over many years. He wrote to alert me to his Amendments 101D, 101E and 101F and, predictably, wanted me to speak in support of his proposal. The noble Lord is aware that I am not going to speak in support of his amendment.
	I am not the first former Chief of Defence Staff not to be in favour of, or attracted to, this idea. Way back in 2000, the noble Lord, Lord Low, was very active in seeking to lift the restrictions on disabled persons from joining and serving in the Armed Forces. At that time, the then serving Chief of the General Staff-now the noble and gallant Lord, Lord Guthrie-spoke in a very public way against the idea, no doubt much to the disappointment of the noble Lord, Lord Low, and others seeking honourable ways to eradicate discrimination against the disabled. The persistence and commitment shown by the noble Lord deserves acknowledgement but I share the reservations of the noble and gallant Lord, Lord Guthrie.
	The Minister will be well briefed on the reasons for the policy of the Ministry of Defence, so I shall not attempt to cover all the points in her notes. Only a fortnight ago, the Under-Secretary of State for Defence and Minister responsible for veterans, Mr Kevan Jones, was reported as giving a number of cogent reasons why the Armed Forces must confine their search for recruits to those individuals who meet certain medical, physical and fitness standards. To do otherwise is to limit the potential for flexible and worldwide deployment, following training, of individuals for their particular roles. The Ministry of Defence's policy is clear and robust, and with good reason.
	Noble Lords will recall that in recent years the Armed Forces have not only been heavily committed to operations but have been steadily civilianising posts where front-line fighting and operational capabilities are not required. This applies not only to HQ posts but also, through the use of public finance initiatives, to many other tasks once undertaken by men and women in uniform but now contracted out to civilian companies. So on a practical level, the opportunities that once might have existed for some disabled individuals are all but gone. I know that the noble Lord, Lord Low, is not expecting the Armed Forces to recruit disabled men or women to tasks that they are unable to perform satisfactorily, so realism as well as principle is at stake.
	As a good employer, the Armed Forces are rightly keen to do all that they can to retain trained individuals who have been wounded or injured while on duty and who wish to stay. For the very few who remain and cannot return to full time operations, there is, hopefully, still some small scope to use them productively. Indeed, I hope there always will be. It is both morally right as well as helping to amortise the cost of their training and experience to fit them in to a less demanding position-a position which could well not be available if the Armed Forces were to change their policy and recruit a uniformed element solely to fill such positions. We could offer no hope for those who have fought and recovered from their injuries. Surely that would be even more unfair.
	The less expensive alternatives of employing a civilian or contracting to industry have helped to reduce the size of the uniformed services, thereby cutting pay and pension provisions and easing pressures on the defence budget. I do not foresee any change in that position. There may well be opportunities for the disabled in these non-uniformed posts where they are able to integrate with and support the Armed Forces in their vital work, but for those who seek to become full-time members of the Armed Forces, the present MoD recruitment policy is realistic, rational and reasonable. I do not support the amendments.

Lord Lester of Herne Hill: I do not intend to draw upon my rather inglorious career in national service as a second lieutenant in the Royal Artillery, although I should say, as one who was at 24 hours' notice to help invade Suez, that I do not think that if the amendments of the noble Lord, Lord Low, had been in force, we would have been any less effective in some areas than we proved to be. That, though, is beside the point.
	I shall explain why we so strongly support the noble Lord, and not only for the reasons given in the report by the Joint Committee on Human Rights, to which I was party. I shall not read the relevant two pages of the report now-they are there for everyone to read. Instead, I shall explain why the Ministry of Defence and senior members of the Armed Forces have in the past persistently opposed the application of equality legislation on very similar arguments to those that are now being deployed in relation to disability. Not only is that true of the Armed Forces but it was once true of the police service.
	The case that I am most proud to have argued in my career was not about the Armed Forces but about the police service in Northern Ireland. In 1986 the chief constable of the Royal Ulster Constabulary had decided, a few years before, that in order to combat the IRA and terrorists it was important that the part-time reserve police force should be composed of men, because it was ungallant to expose women to the risk of death by terror and because men were more likely to be effective than women in combating terrorism in the police service. The Minister of the day blocked the women's access to justice by granting a national security certificate, which was, like the present law in relation to disability in the Armed Forces, a blanket ban allowing of no exceptions.
	We eventually finished up in the European Court of Justice, this being a case about sex discrimination, and the court said, "Even in terms of national security, you must not have a blanket ban". The case went back to Belfast, I had the privilege of cross-examining the chief constable, evidence was given in camera, and of course it turned out that the women were every bit as able as the men-more able, in certain posts-in combating terrorism. In the end the chief constable had to concede and the policy had to change. That was a case about police power, not Armed Forces power, but it involved violence, the use of weapons and all the rest of it.
	Next, the Ministry of Defence decided, in its wisdom, that women could not enter the Armed Forces if they were pregnant, nor if they became pregnant. It became necessary for us to bring a judicial review challenging that on the basis of European law. Ridiculous though it seems, that was the policy, and it was deployed with powerful arguments by the military in the same way that it is doing now. The Ministry of Defence was forced reluctantly to change that policy.
	The next case was with regard to homosexuality. There was a blanket ban on becoming a member of the Armed Forces if you were openly gay, so Mr Lustig-Prean and others eventually had to go to the European Court of Human Rights in order to establish their right to equal treatment and overturn the blanket ban.
	Now we are faced with a ban on disability. The Joint Committee on Human Rights questioned the Minister from the Ministry of Defence, received written evidence and so on. We could not understand how it was possibly justifiable to ratify the UN Convention on Disability with a blanket reservation allowing any discrimination on the basis of disability rather than a flexible test that, of course, made sure that members of the Armed Forces were combat-effective in the posts that were needed. Now we face very sensible amendments by the noble Lord, Lord Low, which introduce proportionality and flexibility, while maintaining the combat effectiveness of the Armed Forces.
	I have no doubt whatever that Ministers will have to get up on behalf of the Ministry of Defence, which-and I say this with the utmost respect-has never knowingly been in the vanguard of reform in the equality area, to explain why the Government cannot accept these amendments because the MoD will not allow it. Very well. If that is the Government's position I predict that, at some point, somebody or a group of disabled people will challenge the Government in the courts and they will succeed.
	For those reasons I oppose the blanket ban and strongly support the noble Lord, Lord Low. I admire him hugely for his persistence in raising the matter and I only wish that glasnost would come to the MoD.

Baroness Masham of Ilton: My Lords, in this amendment we speak of brave and honourable people, who have risked their lives. To have a blanket ban cannot be good for rehabilitation. The Committee should think for a moment of some past leaders. Douglas Bader lost both legs, yet had very high morale. Nelson had one eye. Napoleon had one arm. They were leaders of men. Rehabilitation is so important. If people from the services feel that they have no future, rehabilitation goes downhill.
	I hope that the amendment of the noble Lord, Lord Low, will be looked at carefully because a blanket ban is a dangerous thing.

Baroness Howe of Idlicote: My Lords, I also support my noble friend Lord Low's amendment. Listening to this discussion takes me back even further to the Sex Discrimination Act, where there were various exemptions for the police over height requirements for certain jobs and goodness only knows what. We have moved a little way since then.
	I understand fully what my noble and gallant friend Lord Craig is saying. However, given the speed at which we are treating people with disabilities, people are living who might well not have lived in the past, We have a proportion of our population who have absolutely the same rights as the rest of us to lead a full and fulfilling life. I suggest that we follow the examples that have been given. It is not an absolute requirement. Clearly, reasonableness dictates what can and cannot be done. We already know that those who are in the armed services have been looked after, resettled and so on quite effectively. We are saying that entrance should not be blocked either. That is a very important point.
	I hope that the Minister will give some hope that this will be seen as part of our future behaviour and attitudes to everyone, whether or not they are disabled according to this huge range of so-called disabilities that we have now got-and we have heard how wide the range is these days-to lead full and satisfying lives.

Lord Hunt of Wirral: My Lords, I pay tribute to the noble Lord, Lord Low of Dalston, who put across his amendments in a very reasonable way, rehearsing a number of the arguments we have heard before. This is a very difficult issue. Everyone who has participated in the debate has contributed to a greater understanding of what is at stake here. Listening to the debate, the problem I had was that there were so many cross-issues here. Perhaps the most important concerns what happens to someone who is injured or suffers some form of illness or disability while on active service. Certainly, it is my experience that our Armed Forces look after those who suffer in that way exceedingly well. Issues around this have arisen in the past, but in every case that I have investigated I was satisfied that rehabilitation was very much at the top of the priorities for the individual concerned.
	Therefore, we come back to the point raised by the noble Baroness, Lady Wilkins, about the fitness standard. I can see that that can be justified. We are asking our Armed Forces to do more and more, and we pride ourselves on our flexibility and the ability to utilise everyone who is part of the team on the front line. The noble and gallant Lord, Lord Craig of Radley, knows a tremendous amount about this subject. We should heed his words that the situation is being addressed by the Ministry of Defence in a realistic, rational and reasonable way. Confronted with that evidence, I need some persuading that we should change the law. The noble Baroness, Lady Masham of Ilton, said that a blanket ban, on the face of it, seems a dangerous thing. I am not sure that it is a dangerous thing, but there has to be a broader attitude towards disability than we have at present. I am not sure that that should apply to the front-line forces, but I want us to put rehabilitation much higher up the list of priorities.
	As always, the word "reasonable" summarises the attitude of the noble Baroness, Lady Howe of Idlicote, to all these issues. She used that word again tonight. Is it reasonable to continue in the way that we have? The noble Lord, Lord Lester, knows a tremendous amount about this subject and I bow to his expertise. I said earlier that we should try to simplify, rationalise, consolidate and codify the existing law so that everyone can understand it. I think most people would understand that you have to have able-bodied people on the front line who are able to undertake all those tasks which put their lives at risk in defence of freedom and in our defence.

Lord Lester of Herne Hill: I am grateful to the noble Lord. He keeps using the phrase "the front line", but does he realise that the blanket ban we are talking about does not apply only to the front line? Does he think that it would be good to protect ourselves against the kind of litigation about which I have warned?

Lord Hunt of Wirral: I was really following the noble and gallant Lord, Lord Craig of Radley, when he pointed out that in today's flexible fighting force, the front line summarises the line to which you could be called at any time, whatever your task. I think that the noble Lord, Lord Low of Dalston, conceded that in opening the debate. If one wants to see an even more flexible fighting force, I am not sure that we should impose these restrictions on the forces' ability to provide the fittest possible fighting force. I agree with the noble Lord about the need to avoid litigation. We must ensure that when this Bill eventually leaves this House it is immune to such challenges, which could otherwise occur unless we make the law simple and easy to understand.

Baroness Royall of Blaisdon: My Lords, I, too, thank the noble Lord, Lord Low, for tabling this important amendment. We have given long and careful consideration to whether it is appropriate to retain the Armed Forces' exception in relation to disabled persons. As we have heard this evening, this exception has been carried forward from the current disability discrimination legislation.
	I hear what many noble Lords have said about the police and fire services, which have done away with their disability exemptions. However, the Armed Forces perform a role that is fundamentally different from organisations such as the police and fire services. All service personnel are weapons trained and need to be able to respond to the uniquely harsh realities and complexities of warfare. This involves deployment overseas and prolonged working in stressful situations and arduous environments. Service in the police and fire services is intrinsically different, not least because there is no requirement for everyone to be weapons trained or to serve overseas for prolonged periods. The Government do not therefore consider that a direct comparison can be drawn between services in such disparate organisations.
	We believe that it is right for decisions on operational effectiveness to be taken by Ministers, accountable to Parliament and based on military advice, not by the courts. Like the noble and gallant Lord, Lord Craig of Radley, we believe that the Armed Forces must be able to determine and set their own standards, based on the tasks to be performed. Combat effectiveness relies on teams consisting of fully able personnel in order to meet the worldwide obligation to deploy.
	The Armed Forces are called on to perform in a wide range of different tasks and great damage would be done if the base requirement for physical fitness was abandoned. It is important to ensure that personnel have the fitness attributes to cope with the physical demands of service in the Armed Forces. The Armed Forces thus have a medico-legal obligation to ensure that they do not recruit individuals who are clearly unfit for task and to protect vulnerable applicants from harm. Recruiting those who are not fit for task potentially endangers not only the individual's health and well-being but also the safety of other personnel serving in the same unit or in the same operational environment.
	The noble Lord, Lord Low, rightly spoke of the diversity of disabilities and, as my noble friend Lady Wilkins and others have said, the Armed Forces no longer make generalisations about disabled people's capacity to serve. Indeed, the Armed Forces already demonstrate their willingness to follow the spirit of disability legislation by recruiting people who have some degree of impairment, including learning disabilities, and by retaining service personnel who became disabled in the course of their duties. The noble Lord is absolutely right to say that there is much more that we could and should be doing in this area.
	The noble Baroness, Lady Masham, and the noble Lord, Lord Lester, spoke of a blanket ban of disabled people in the Armed Forces. Whereas the provision permits the Armed Forces to discriminate against disabled people, its purpose is not to allow the operation of a blanket ban. The purpose of the exception is to allow the Armed Forces to organise themselves so as to be able to operate effectively. The Armed Forces have a good record of recruiting and retaining service personnel.
	The retention of service personnel who become disabled, whom the Armed Forces have a clear moral obligation to look after, requires a sensible balance to be struck between the needs of the service and those of the individual. Adjustments for disabilities are made when practical, but it is not possible for the services to retain everyone who becomes disabled. Cases are considered on an individual basis against manpower requirements. While the services endeavour to continue to employ people injured on duty, where necessary in an alternative role, they do not artificially create posts to accommodate them.
	I add that the Armed Forces' exemption is entirely consistent with European law. Member states have an exemption from the relevant directive, which says that,
	"in so far as it relates to discrimination on the grounds of disability and age",
	it,
	"shall not apply to the armed forces".
	In 2009, the UK ratified the UN Convention on the Rights of Persons with Disabilities, to which we entered a reservation on behalf of the Armed Forces to safeguard the exemption. The European Union has also ratified the convention without prejudice to the derogation in the directive for all member states' Armed Forces.
	In response to the question of when the UK's reservation to the convention will be reviewed, the Ministry of Defence gives careful consideration to whether its policies and practices meet our current needs or whether they could be revised. The MoD reviewed the current arrangements recently but concluded that it remains essential that we retain our reservation and the Armed Forces' exemption from domestic disability legislation. We will, however, continue to keep these under review.
	I know that the EHRC has suggested that there should be a pilot exercise whereby the employment provisions of the Bill, plus specific justifications concerning combat effectiveness, should be simulated and that the exercise should be independently reviewed to determine any risk to the MoD's ability to ensure the fitness of the people whom it recruits into the Armed Forces. However, we do not think that such an exercise would be helpful and would not want to run the risk of recruiting someone who was not fit for task. Recruiting those who are not fit for task potentially endangers not only the individual's health and well-being but the safety of other personnel serving in the same unit or operational environment.
	Therefore, while I note what the noble Lord, Lord Lester, said about the potential for future challenges to our current position, for the moment we have not changed our position, although I have carefully listened to what noble Lords have said. I ask the noble Lord to withdraw the amendment.

Lord Low of Dalston: I am grateful to everyone who has spoken. In particular, I am grateful to my noble and gallant friend Lord Craig of Radley for the collegiate way in which he expressed his opposition to my amendment. We remain in mutual respect of one another, but in mutual disagreement.
	I did not expect the Government to roll over and accept the amendment. The Minister's response was fairly predictable. I have heard it several times before. The Ministry of Defence may keep the matter under review, but its response does not change. It has not changed for the past 10 years and I do not expect it to change in a hurry. However, like the noble Lord, Lord Lester, I predict that it will have to change one of these days, just as the responses of the police, prison and fire services have had to bow to the onward march of our concern for equality in this society.
	The noble Baroness said that the stance of the British Government is consistent with EU law. That is perfectly true, in that the European Union permits an exemption in respect of service in the Armed Forces as regards disability. The UK just happens to be isolated and alone as the only country within the EU that has felt the need to avail itself of such an exemption.
	I shall try to be a little conciliatory. It is disappointing that the Government have not felt able to be a little more flexible, given that we framed the amendment in such a way as to give the Armed Forces a get-out, an exception, in cases where excluding disabled people was a proportionate response in the interests of combat effectiveness. However, there we are-the Government have not felt able to go that far tonight.
	When we on the task force discussed these matters with the Ministry of Defence, I suggested that if the MoD were to relax the blanket ban, perhaps a code of practice could be designed in such a way as to cater for the concerns of the service chiefs. I respectfully repeat that suggestion to the Government. I am sorry that it has not been followed up since we discussed it on the task force.

Lord Hunt of Wirral: If the noble Lord will allow me, I find this a fascinating suggestion. Had it come earlier it might have given rise to an extended but certainly worthwhile debate. Can he clarify whether he has raised this idea before? I am not saying that I would be in favour of relaxing the blanket ban, but certainly I am interested in whether some form of code could be worked up which would allow people with disability and in general to support the Armed Forces in some way, other than being part of the flexible fighting force. Has such a code been considered in the past? I cannot recall that it ever has.

Lord Low of Dalston: I am grateful to the noble Lord for his positive intervention. I did not raise this before only because I had kept it in reserve until I had heard the Government's response. Given the response that we have had from them, it seemed appropriate to throw in that suggestion in winding up. We suggested a code of practice when the task force was considering these matters, and it was taken up by the Disability Rights Commission when it was established. There were perhaps some preliminary discussions-I think it was floated with the Ministry of Defence-but it does not appear to have got off the ground. I am grateful to the noble Lord for his positive response to the suggestion, and I would be extremely grateful if the Government would pick this up to see if it would represent a way forward or out of the complete impasse at which we seem to be regarding the exemption.

Baroness Royall of Blaisdon: My Lords, clearly it is an interesting suggestion-like the noble Lord, Lord Hunt, I was not aware of it. I certainly could not agree to look into it in the course of this Equality Bill. The Government's position now is absolutely clear, we are not going to waver and we are not going to consider such a code in the context of the Equality Bill. However, I will undertake to take back the suggestion of a code to see if we can reflect further and perhaps work on this proposal. As I said, this will not be in the course of the Equality Bill.

Lord Low of Dalston: I am grateful to the Minister for that response. I would not expect to see it in the Equality Bill, but perhaps it can be picked up afterwards. No doubt if we could agree on a code of practice, it would have to come before Parliament and noble Lords would then have an opportunity to pronounce upon it. With that constructive end to the debate on all sides, I am happy to withdraw the amendment.
	Amendment 101D withdrawn.
	Amendments 101E and 101F not moved.
	House resumed.

Allhallows Staining Church Bill [HL]
	 — 
	First Reading

The Bill was presented and read a first time.

Kent County Council (Filming on Highways) Bill [HL]
	 — 
	First Reading

The Bill was presented and read a first time.
	House adjourned at 9.49 pm.